Decree No. 93/2005/ND-CP Amending and Supplementing Certain Provisions of Decree No. 105/2003/ND-CP dated September 17, 2003 of the Government detailing and guiding the implementation of certain provisions of the Labor Code on the recruitment and management of foreign workers working in Vietnam.

DECREE

AMENDING AND SUPPLEMENTING CERTAIN PROVISIONS OF THE DECREE NO. 105/2003/NĐ-CP

ISSUED ON SEPTEMBER 17, 2003 BY THE GOVERNMENT GUIDING THE IMPLEMENTATION OF CERTAIN PROVISIONS OF THE LABOR CODE REGARDING THE RECRUITMENT AND MANAGEMENT OF FOREIGN WORKERS IN VIETNAM

Amending and supplementing certain provisions of Decree No. 105/2003/NĐ-CP issued on September 17, 2003 by the Government guiding the implementation of certain provisions of the Labor Code regarding the recruitment and management of foreign workers in Vietnam as follows:

Article 1. Enterprises, agencies, and organizations in Vietnam, as stipulated in Article 132 of the Labor Code, established and operating in accordance with Vietnamese laws, may recruit foreign workers as follows:

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Labor Code on June 23, 1994; Law Amending and Supplementing Certain Articles of the Labor Code on April 2, 2002;

At the proposal of the Minister of Labor, Invalids and Social Affairs,

DECREE:

Article 1. 1. Enterprises operating under the Law on State-Owned Enterprises, the Enterprise Law, and the Law on Foreign Investment in Vietnam.

1. Economic organizations conducting foreign exchange trading agency activities; economic organizations conducting foreign currency receipt and payment service provision activities; economic organizations conducting border country currency exchange agency activities.

2. Overseas contractors (main contractors and subcontractors) undertaking projects in Vietnam.

3. Representative offices and branches of economic, commercial, financial, banking, insurance, scientific and technological, cultural, sports, educational, training, and healthcare organizations.

4. Social occupational organizations.

5. State-run public institutions.

6. Healthcare, cultural, educational, training, and sports establishments (including those established under the Enterprise Law, the Law on State-Owned Enterprises, and the Law on Foreign Investment in Vietnam).

7. Offices of foreign or international projects in Vietnam.

8. Management offices of foreign joint venture enterprises under business cooperation contracts in Vietnam.

9. Legal practice organizations in Vietnam as prescribed by Vietnamese laws.

10. Cooperatives.

The above enterprises, agencies, and organizations shall collectively be referred to as employers.

10. Cooperative.

Article 3.

2. Article 3 shall be amended and supplemented as follows:

1. Employers stipulated in Clause 1 of Article 1 of this Decree may recruit foreign workers up to a ratio not exceeding 3% of the current number of employees in the enterprise, but at least one person must be recruited.

For enterprises operating in special sectors that employ few workers or are in the initial stages of investment and production and have yet to stabilize, if there is a need to recruit foreign workers exceeding the 3% ratio, they must submit a request for examination and approval in writing by the Chairman of the People's Committee of the province or centrally-administered city based on the actual needs of each enterprise.

2. For employers stipulated in Clauses 2, 3, 4, 5, 6, 7, 8, and 9 of Article 1 of this Decree, there is no specified ratio for recruiting foreign workers, but if they wish to recruit foreign workers, they must obtain the approval of the Chairman of the People's Committee of the province or centrally-administered city.

3. In cases where enterprises and organizations stipulated in Article 1 of this Decree have been approved by competent Vietnamese authorities through decisions approving projects or issuing licenses for operations that include the number of foreign workers to be employed, they are exempt from seeking approval from the Chairman of the People's Committee of the province or centrally-administered city.

3. In cases where enterprises and organizations as specified in Article 1 of this Decree have been approved by competent state authorities of Vietnam with decisions approving projects or issuing operating licenses that include provisions on the number of foreign workers to be employed, they shall not need to seek approval from the Chairman of the People's Committee of provinces and centrally governed cities.

3 and 4 of Article 4 are amended and supplemented as follows:

"3. Possess high professional and technical qualifications (including engineers or persons with equivalent qualifications to engineers or higher; masters of traditional trades), have extensive experience and seniority in their professions, in production management, or in managerial positions that Vietnamese workers cannot meet.

For foreign workers applying to engage in private medical or pharmaceutical practices, directly treating patients in Vietnam, they must meet the conditions set forth by Vietnamese laws on private medical and pharmaceutical practices.

4. Have no criminal record; not currently being pursued for criminal responsibility or serving a criminal sentence according to Vietnamese and foreign laws."

4. Clause 1 of Article 6 is amended and supplemented as follows:

1 of Article 6 is amended and supplemented as follows:

"1. Foreign workers working for enterprises, agencies, and organizations in Vietnam must hold a work permit, except in the following cases:

a) Foreign workers entering Vietnam to work for less than three months; or to handle urgent situations such as complex technical or technological issues arising that affect or could potentially affect production and business operations, which Vietnamese experts and other foreign experts currently in Vietnam cannot resolve;

b) Foreign individuals who are members of the Board of Directors or Members of the Board of Members (for limited liability companies established under the Enterprise Law) of enterprises established in accordance with Vietnamese laws;

c) Foreign individuals who are the Heads of Representative Offices or Branches in Vietnam;

d) Foreign lawyers who have been granted a license to practice law in Vietnam by the Ministry of Justice in accordance with Vietnamese laws."

"4. The validity period of the work permit issued shall correspond to the term of the anticipated labor contract or the decision of the foreign party dispatching foreigners to work in Vietnam, but shall not exceed thirty-six months."

4 of Article 6 is amended and supplemented as follows:

"4. The validity period of the work permit issued shall correspond to the duration of the anticipated labor contract or the decision of the foreign side dispatching the foreign worker to Vietnam, but shall not exceed thirty-six months."

For foreigners entering Vietnam to implement contracts (excluding labor contracts) between enterprises, agencies, organizations in Vietnam and enterprises, agencies, organizations abroad, such foreigners are not required to apply for a work permit but must ensure compliance with the conditions stipulated in Clauses 1, 2, 3, and 4 of Article 4 of this Decree. The enterprises, agencies, and organizations in Vietnam shall report as they would for foreigners working for enterprises, agencies, and organizations in Vietnam for less than three months, and submit the relevant documents of the foreigner as specified in Points b, c, d, and đ of Clause 1 of Article 5 of this Decree.

7. Clause 3 of Article 7 is amended and supplemented as follows:

"3. The extension period of the work permit:

Within thirty days (counting working days) before the work permit expires, the employer must submit an application for the extension of the work permit in accordance with the regulations of the Ministry of Labor - Invalids and Social Affairs.

The extension period of the work permit depends on the continued working time of the foreign worker for the employer as determined in the labor contract or the document from the foreign side assigning the foreigner to continue working in Vietnam, with the maximum extension period being thirty-six (thirty-six) months. In cases where the first extension period has expired and no Vietnamese worker has been trained to replace the foreign worker, the work permit may be extended further if approved by the Chairman of the People's Committee of the province or centrally-run city where the enterprise, agency, or organization is headquartered.

Article 2. The Ministry of Labor - Invalids and Social Affairs and other relevant ministries and sectors within their respective functions, tasks, and authorities shall be responsible for guiding the implementation of this Decree.

Article 3. This Decree takes effect fifteen days after its publication in the Official Gazette. Previous regulations that conflict with this Decree are hereby abolished.

Article 4. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees directly under the Central Government shall be responsible for implementing this Decree.