Laws of Vietnam

THE GOVERNMENT

Article 1.- Scope and subjects of application

This Decree provides for the recruitment and management of foreign employees working in Vietnam; order and procedures for granting work permits and the use of work permits; responsibilities of foreign employees, employers and state agencies in the recruitment and management of foreign employees in Vietnam.

This Decree applies to foreigners working in Vietnam and Vietnam-based enterprises and organizations employing foreigners, specifically:

1. Foreigners working in Vietnam in the following forms:

a/ Performing a labor contract;

b/ Working as intra-corporate transferees in enterprises which have a commercial presence in Vietnam;

c/ Performing economic, commercial, financial, banking, insurance, scientific and technical, cultural, sports, education or healthcare contracts;

d/ Working as contractual service providers;

e/ Working as service salespersons;

f/ Representing foreign non-governmental organizations licensed to operate in accordance with Vietnamese law.

2. Enterprises and organizations employing foreigners, including:

a/ Enterprises operating under the Enterprise Law and the Investment Law;

b/ Foreign contractors (principal contractors and subcontractors) performing contracts in Vietnam;

c/ Representative offices, branches of economic, commercial, financial, banking, insurance, scientific and technical, cultural, sports, education and health organizations;

d/ Socio-political organizations, socio-politico-professional organizations, social organizations, socio-professional organizations; non-governmental organizations;

e/ Non-business units of the State;

f/ Healthcare, cultural, education and sports establishments licensed by competent agencies;

g/ Vietnam-based offices of foreign or international projects;

h/ Vietnam-based executive offices of foreign parties to business cooperation contracts;

i/ Law firms operating in Vietnam in accordance with Vietnamese law;

j/ Cooperatives and unions of cooperatives established and operating under the Law on Cooperatives.

The above enterprises and organizations are below collectively referred to as employers.

Article 2.- Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Foreigner is a person who does not have Vietnamese nationality under Vietnam's Nationality Law;

2. Managers and executives are foreigners who primarily direct the management of foreign enterprises which have established commercial presence in Vietnam, receiving only general supervision or direction from the board of directors or stockholders of the enterprises or their equivalent; management of an enterprise includes directing the enterprise or a division, a department or a subordinate unit of the commercial presence, supervising and controlling the work of other supervisory, professional or managerial employees, having the authority personally to hire and fire or recommend hiring, firing or other personnel actions. These managers and executives do not directly perform tasks concerning the actual provision of the services of the commercial presence.

3. Specialists are foreigners who possess high-level professional qualifications and technical expertise in services, research equipment, technique or management (including engineers or persons with engineer-equivalent or higher qualifications; artisans of traditional trades) and those with a lot of professional, production and business administration or management experience.

4. Foreign intra-corporate transferees include managers, executives and specialists, as defined above, of a foreign enterprise which has established a commercial presence in the territory of Vietnam, temporarily moving as intra-corporate transferees to that commercial presence and who have been previously employed by the foreign enterprise for at least 12 months.

5. Service salespersons are persons not based in the territory of Vietnam and receiving no remuneration from a source located within Vietnam, and who are engaged in activities related to representing a service provider for the purpose of negotiating for the sale of the services of that provider provided that such sales are not directly made to the general public and the salesperson is not directly engaged in providing the service.

6. Contractual service provider is foreigner who is an employee of a foreign enterprise having no commercial presence in Vietnam. These persons have been employed by the foreign enterprise having no commercial presence in Viet Nam for at least 02 (two) years and meet the requirements prescribed for "specialist" stated in Clause 3 of Article 2 above.

7. Vietnamese party means:

a/ Lawful representative of a Vietnam-based enterprise or organization which has signed a contract with a foreign party under which the foreign party will provide services, sell services and perform an economic, commercial, financial, banking, insurance, scientific and technical, cultural, sports, education or health contract.

b/ Representative of a foreign enterprise or organization which has established a commercial presence in the territory of Vietnam in accordance with Vietnamese law.

8. Commercial presence is a service provider having the nationality of a country that enters another country, establishes a legal person and provides services there. For example, a commercial bank opens a branch in a foreign country.

Article 3.- Foreigners working in Vietnam must fully meet the following conditions

1. Being full 18 years of age or older;

2. Being physically fit to work requirements;

3. Being a manager, executive or specialist as defined in Clause 2 or Clause 3, Article 2 of this Decree;

Foreigners applying to practice private medicine and pharmacy, personally give medical examination and treatment in Vietnam or work in the education and vocational training area must meet all conditions prescribed by the Vietnamese law on private medicine or pharmacy practice or education and vocational training.

4. Not having previous conviction for infringement of national security; not facing examination of penal liability and not serving a criminal penalty as prescribed by Vietnamese or foreign law.

5. Possessing a work permit granted by a competent Vietnamese state agency, except for cases in which a work permit is not required as stated in Clause 1, Article 9 of this Decree.

Article 4.- Recruitment of foreigners to work under labor contracts

1. Employers may recruit foreigners who ensure all conditions specified in Article 3 of this Decree to work as managers, executives or specialists when Vietnamese laborers are unable to meet production and business requirements.

2. A foreigner shall prepare two dossier sets of registration for recruitment and submit them to the employer. One set will be managed by the employer and the other used by the employer for carrying out procedures for registration of the grant of a work permit. A dossier set comprises:

a/ A registration for recruitment, made by the foreigner according to a form prescribed by the Ministry of Labor, War Invalids and Social Affairs;

b/ A judicial record card issued by a competent agency of the country where the foreigner resides before entering Vietnam. For a foreigner who has been residing in Vietnam for full six months or more, only a judicial record card issued by the provincial-level Justice Service of the Vietnamese locality where he/she is residing is required;

c/ The foreigner's resume, made according to the form prescribed by the Ministry of Labor, War Invalids and Social Affairs;

d/ A health certificate which was granted in a foreign country or Vietnam according to regulations of the Vietnamese Health Ministry;

e/ A copy of the certificate of the foreigner's professional or technical expertise at an advanced level. For foreigners who are artisans of traditional trades or experienced in their professions, production execution and management but have no certificate or diploma of recognition, a written certification of at least five years' experience in their profession, production execution and management issued by a competent foreign agency is required;

f/ Three 3cm x 4cm color photos (showing bare head, straight-looking and clear face with two ears and without glasses against white background), which were taken within 6 months from the time of application.

3. The above papers issued or notarized and authenticated by foreign agencies or organizations must be legally consularized in accordance with Vietnamese law and translated into Vietnamese; their translations and copies must be notarized in accordance with Vietnamese law.

4. Order and procedures for recruiting foreigners to work in Vietnam:

a/ At least 30 (thirty) days before the recruitment, an employer shall announce the need for recruitment of employees on a central or local press (print, radio, television or electronic) with the following details: number of employees to be recruited, jobs, professional qualifications, salary levels, working conditions and other requirements regarded as necessary by the employer.

Employers that recruit foreigners through an employment service agency are not required to announce their need for recruitment of employees on a central or local press as stated above.

b/ The employer shall supply sufficient Vietnamese legal provisions concerning the rights and obligations of foreigners working in Vietnam; foreigners shall thoroughly study Vietnamese legal provisions supplied by employers and at the same time prepare necessary papers and strictly comply with the provisions of this Decree.

c/ Foreigners wishing to work in Vietnam shall submit dossiers of registration for recruitment stated in Clause 2 of this Article to the employer. The employer shall receive dossiers that comprise all papers prescribed in this Decree and carry out procedures to request the grant of work permits to foreigners to enter and work in Vietnam under this Decree.

d/ When obtaining work permits, foreigners and employers shall sign written contracts in accordance with Vietnamese labor law; employers shall send copies of signed contracts to agencies which have granted work permits to these foreigners. The content of labor contracts must not be contrary to the content of granted work permits.

Article 5.- Foreigners entering Vietnam to work as intra-corporate transferees

1. Foreigners working in Vietnam under Point b, Clause 1, Article 1 of this Decree must have foreign enterprises' documents on sending the foreigners to work in the commercial presences of these foreign enterprises in the territory of Vietnam and ensure all conditions specified in Article 3 of this Decree.

2. An enterprise that has established its presence in Vietnam and has foreigners working as intra-corporate transferees must employ Vietnamese citizens accounting for at least 20% of the total number of its managers, executives and specialists. However, a foreign enterprise may employ at least 03 (three) non-Vietnamese managers, executives and specialists.

3. The representative of a foreign enterprise that has established a commercial presence in the territory of Vietnam in accordance with Vietnamese law shall supply sufficient Vietnamese legal provisions concerning the rights and obligations of foreigners working in the territory of Vietnam. Foreigners shall study and fully comply with Vietnamese legal provisions supplied by employers.

4. Foreigners shall prepare papers specified at Points b, c, d, e and f, Clause 2, Article 4 of this Decree.

5. The representative of a foreign enterprise that has established a commercial presence in the territory of Vietnam shall carry out procedures to request the grant of work permits to foreigners entering to work in Vietnam under this Decree before foreigners enter Vietnam.

Article 6.- Foreigners entering Vietnam to perform contracts of different types (other than labor contracts)

1. A foreigner working in Vietnam under Points c and d, Clause 1, Article 1 of this Decree must ensure all conditions specified in Article 3 of this Decree and produce the contract signed between the Vietnamese and foreign parties on their agreement to employ the foreigner in Vietnam.

2. The Vietnamese party shall supply sufficient Vietnamese legal provisions concerning the rights and obligations of foreigners working in the territory of Vietnam. Foreigners shall study and fully comply with Vietnamese legal provisions.

3. Foreigners shall prepare papers specified at Points b, c, d, e and f, Clause 2, Article 4 of this Decree.

4. The Vietnamese party shall carry out procedures to request the grant of work permits to foreigners entering to work in Vietnam under this Decree before foreigners enter Vietnam.

Article 7.- Foreigners entering Vietnam to work as service salespersons

Foreigners entering Vietnam to work under Point e, Clause 1, Article 1 of this Decree shall notify at least 07 (seven) days in advance before they enter Vietnam to work as service salespersons the provincial-level Labor, War Invalids and Social Affairs Service of the locality where they intend to sell services of the following details: full name, age, nationality, passport number, dates of starting and finishing work and specific jobs of the foreigner.

Article 8.- Foreigners representing foreign non-organizational organizations licensed to operate in accordance with Vietnamese law

1. Foreigners working in Vietnam under Point f, Clause 1, Article 1 of this Decree must ensure all conditions specified in Article 3 of this Decree.

2. Foreigners shall study and fully comply with Vietnamese legal provisions concerning the rights and obligations of foreigners in Vietnam.

3. Foreigners shall prepare papers specified at Points b, c, d, e and f, Clause 2, Article 4 of this Decree.

4. The representative of a foreign non-governmental organization licensed to work in Vietnam shall carry out procedures to request the grant of work permits to foreigners entering to work in Vietnam under this Decree before foreigners enter Vietnam.

Article 9.- Grant of work permits

1. Foreigners working in Vietnam must have a work permit, except the following cases:

a/ Foreigners entering Vietnam to work for a period of less than 03 (three) months;

b/ Foreigners who are members of limited liability companies with two or more members;

c/ Foreigners who are owners of one-member limited liability companies;

d/ Foreigners who are members of Boards of Directors of joint stock companies;

e/ Foreigners entering Vietnam to work as service salespersons;

f/ Foreigners entering Vietnam to deal with urgent circumstances, such as complicated technical and technological incidents and problems that affect or threaten to affect production and business but fall beyond the handling capacity of Vietnamese specialists and foreign specialists who are currently present in Vietnam. If they have to work for more than 03 (three) months in Vietnam, at the end of a three-month period, they shall carry out procedures of registration for the grant of work permits under this Decree;

g/ Foreign lawyers who possess licenses to practice law in Vietnam which are granted by the Ministry of Justice in accordance with law.

2. Provincial-level Labor, War Invalids and Social Affairs Services shall grant to foreigners working in Vietnam work permits made according to a form prescribed by the Ministry of Labor, War Invalids and Social Affairs.

3. A dossier of application for a work permit comprises:

a/ A written request for the grant of a work permit, made by the employer, the Vietnamese party or the representative of the foreign non-governmental organization according to a form prescribed by the Ministry of Labor, War Invalids and Social Affairs.

b/ For a foreigner recruited to work under a labor contract, the papers specified at Points a, b, c, d, e and f, Clause 2, Article 4 of this Decree are required.

c/ For a foreign intra-corporate transferee, the papers specified at Points b, c, d, e and f, Clause 2, Article 4 of this Decree are required together with the foreign enterprise's document on sending the foreigner to work in its commercial presence in the territory of Vietnam.

d/ For foreigners specified at Points c and d, Clause 1, Article 1 of this Decree, the papers specified at Points b, c, d, e and f, Clause 2, Article 4 of this Decree are required together with the contract signed between the Vietnamese and foreign parties.

e/ For foreigners specified at Point f, Clause 1, Article 1 of this Decree, the papers specified at Points b, c, d, e and f, Clause 2, Article 4 of this Decree are required together with the certificate of the foreign non-governmental organization licensed to operate in accordance with Vietnamese law.

4. The validity duration of a granted work permit corresponds to the term of the labor contract to be signed or the period during which the foreigner will work in Vietnam as decided by the foreign party; if the foreigner enters Vietnam to work without a labor contract, the validity duration of the granted work permit corresponds to the contract signed between the Vietnamese and foreign parties. For a foreigner acting as a representative of a foreign non-governmental organization licensed to operate in accordance with Vietnamese law, the validity duration of a granted work permit corresponds to the duration specified in the certificate issued by the foreign non-governmental organization.

In the above cases, the validity duration of a work permit is no more than 36 (thirty six) months.

5. Order of grant of work permits:

a/ At least 20 (twenty) days before the date a foreigner intends to work at a Vietnam-based enterprise, agency or organization, the employer or the Vietnamese party or the representative of the foreign non-governmental organization licensed to operate in accordance with Vietnamese law shall submit a dossier of application for a work permit to the provincial-level Labor, War Invalids and Social Affairs Service of the locality where the foreigner will work on a regular basis. If the foreigner works on an irregular basis, such a dossier shall be submitted to the provincial-level Labor, War Invalids and Social Affairs Service of the locality where the employer's head office is based.

b/ Within 15 (fifteen) days after receiving a complete and valid dossier of application for a work permit, the provincial-level Labor, War Invalids and Social Affairs Service shall grant a work permit to the foreigner. In case of refusal to grant a work permit, it shall issue a written reply stating the reason.

c/ If a foreigner who currently possess a valid work permit wishes to enter into an additional labor contract with another employer, a dossier of application for a work permit must comprise papers specified at Points a and e, Clause 2, Article 4 and Point a, Clause 3, Article 9 of this Decree and a copy of the valid work permit.

6. For a foreigner entering Vietnam to work without having to apply for a work permit as stipulated in Clause 1, Article 9 of this Decree, the employer or Vietnamese party shall send a report 07 (seven) days in advance (before the foreigner starts working) to the provincial-level Labor, War Invalids and Social Affairs Service of the locality where the foreigner will work on a regular basis on the following details of the foreigner: full name, age, nationality, passport number, dates of starting and finishing work and jobs to be performed by the foreigner, together with the foreigner's papers specified at Points b, c, d and e, Clause 2, Article 4 of this Decree, and the foreigner must ensure all the conditions specified in Clauses 1, 2, 3 and 4, Article 3 of this Decree. For foreigners specified at Point f, Clause 1 of this Decree, the time limit for reporting on the personal details of a foreigner is 30 (thirty) days, counting from the date the foreigner starts working.

Article 10.- Extension of work permits

1. Cases eligible for extension of work permits:

a/ The employer has planned and is conducting training of Vietnamese employees to perform the jobs currently performed by foreigners but Vietnamese employees are still unable to perform these jobs and foreigners commit no breaches of labor discipline as stipulated at Points b and c, Clause 1, Article 84 of the amended and supplemented Labor Code.

b/ The foreigner works in Vietnam under Points c and d, Clause 1, Article 1 of this Decree and his/her jobs require more than 36 (thirty six) months.

2. A dossier of application for extension of a work permit:

a/ For a foreigner working under a labor contract, a dossier comprises:

- The employer's written request for extension of the work permit, made according to a form prescribed by the Labor, War Invalids and Social Affairs Ministry, which clearly states the reason for the failure to train Vietnamese to replace the foreigner, full names of Vietnamese persons who have been and are being trained to replace the foreigner, training expenses, periods and venues;

- A copy of the labor contract (certified by the employer);

- The granted work permit.

b/ For foreigners working in the forms specified at Points c and d, Clause 1, Article 1 of this Decree, a dossier comprises:

- The Vietnamese party's written request for extension of the work permit, made according to a form prescribed by the Labor, War Invalids and Social Affairs Ministry;

- A copy of the contract signed between the Vietnamese and foreign parties;

- The granted work permit.

3. Extended duration of work permits:

The extended duration of a foreigner's work permit depends on the subsequent working time of the foreigner for the employer indicated in the labor contract or the foreign party's document on sending the foreigner to work in Vietnam or the contract signed between the Vietnamese and foreign parties.

The extended duration is no more than 36 (thirty six) months per extension.

4. Order of extension of work permits:

a/ At least 30 (thirty) days before a work permit expires, the employer or the Vietnamese party shall submit a dossier of application for extension of a work permit to the provincial-level Labor, War Invalids and Social Affairs Service which has granted the work permit.

b/ Within 15 (fifteen) days after receiving a complete and valid dossier of application for extension of a work permit, the provincial-level Labor, War Invalids and Social Affairs Service shall extend the work permit. In case of refusal to extend the work permit, it shall issue a written reply stating the reason.

Article 11.- Renewal of work permits

1. Cases eligible for renewal of work permits:

a/ Lost work permit;

b/ Damaged work permit.

2. Dossiers of application for renewal of work permits, each comprising:

a/ An application for the renewal of a work permit, made by the foreigner according to a form set by the Ministry of Labor, Ward Invalids and Social Affairs, clearly stating the reason for loss or damage;

b/ Written request for renewal of a work permit, made by the employer, the Vietnamese party or the representative of the foreign non-governmental organization;

c/ The damaged work permit.

3. Content of a renewed work permit: The renewed work permit of a foreigner has the exact content as the granted one.

4. Order of renewal of work permits:

a/ Within 03 (three) days after the date the foreigner detects that his/her work permit is lost or damaged, he/she shall report it to the employer, the Vietnamese party or the representative of the foreign non-governmental organization for notification to the provincial-level Labor, War Invalids and Social Affairs Service which has granted the work permit. Within 30 (thirty ) days from the date the work permit is lost or damaged, the employer, the Vietnamese party or the representative of the foreign non-governmental organization shall submit a dossier of application for renewal of the work permit to the provincial-level Labor, War Invalids and Social Affairs Service which has granted the work permit;

b/ Within 15 (fifteen) days from the date of receiving a complete and valid dossier of application for renewal of a work permit, the provincial-level Labor, War Invalids and Social Affairs Service shall renew the work permit. In case of refusal to renew a work permit, it shall issue a written reply stating the reason.

Article 12.- Cases in which work permits cease to be valid or are invalid

1. Expiration of work permit.

2. Termination of labor contract.

3. Inconsistency between labor contract and granted work permit.

4. Expiration or termination of economic, commercial, financial, banking, insurance, scientific, technical, cultural, sports, education or health contract.

5. Written notification issued by the foreign party that has sent the foreigner to work in Vietnam on the cessation of the appointment of the foreigner to work in Vietnam.

6. Withdrawal of the work permit by a competent Vietnamese agency for violation of Vietnamese law.

7. Termination of operation of the employing enterprise, organization, Vietnamese party or foreign non-governmental organization.

8. The foreigner is imprisoned, deceased or missing as declared by a court.

Article 13.- Use of work permits

1. Foreigners shall keep the granted work permits which are still valid.

2. Foreigners shall produce their work permits when carry out procedures related to their entry and exit and upon request of competent state agencies.

3. When a foreigner goes to work in a province or centrally run city (other than the province or centrally run city where he/she works on a regular basis) for 10 (ten) or more consecutive days or a total of 30 (thirty) days within 01 (one) year, the employer, the Vietnamese party or the representative of the foreign non-governmental organization shall send a written notice of the foreigner's working visit together with a copy of his/her work permit to the provincial-level Labor, War Invalids and Social Affairs Service of the locality where the foreigner will work in accordance with regulations of the Ministry of Labor, War Invalids and Social Affairs.

Article 14.- Inspection, examination and handling of violations

1. Ministries, ministerial-level agencies, government-attached agencies and People's Committees of provinces and centrally run cities shall implement the provisions of the Labor Code and this Decree.

2. Employers and individuals committing acts in violation of the Labor Code, this Decree and other relevant legal provisions shall, depending on the nature and severity of their violations, be administratively handled or examined for penal liability in accordance with Vietnamese law.

3. Foreigners who are working in Vietnam without a work permit shall carry out procedures of application for work permits under this Decree. After 06 (six) months working in Vietnam, if a foreign employee is not granted a work permit, the concerned provincial-level Labor, War Invalids and Social Affairs Service shall propose the Ministry of Public Security to issue a decision to expel the foreign employee from Vietnam in accordance with law.

Article 15.- Responsibilities of the Ministry of Labor, War Invalids and Social Affairs

To assume the prime responsibility for and coordinate with the Ministry of Public Security, the Ministry of Justice and the Ministry of Foreign Affairs in guiding the implementation of this Decree regarding the process of legal consularization, judicial records, temporary residence and permanent residence cards, the grant, extension and renewal of work permits to foreigners working in Vietnam.

Article 16.- Responsibilities of the Ministry of Health

To provide guidance on the form, content and agencies competent to grant health certificates and the validity term of health certificates issued to foreigners working in Vietnam.

Article 17.- Responsibilities of People's Councils of provinces and centrally run cities

People's Councils of provinces and centrally run cities shall decide on fees for the grant of work permits to foreigners working in Vietnam in accordance with the law on charges and fees.

Article 18.- Responsibilities of provincial-level Labor, War Invalids and Social Affairs Services

1. To receive and preserve dossiers of application for work permits, dossiers of application for extension of work permits and dossiers of application for renewal of work permits.

2. To grant, extend and renew work permits under this Decree.

3. To monitor, sum up and report on the situation of foreigners working in enterprises, agencies and organizations in areas under their respective management.

4. To examine and inspect the implementation of the provisions of the Labor Code and this Decree.

Article 19.- Responsibilities of employers, Vietnamese parties and foreign non-governmental organizations

1. To comply with the provisions of the labor law and other relevant laws of Vietnam.

2. To carry out procedures to request the grant, extension and renewal of work permits to foreigners working in Vietnam and pay fees for the grant of work permits in accordance with law.

3. To fully perform labor contracts signed with foreigners working in Vietnam.

4. To manage dossiers of registration for recruitment of foreigners working in Vietnam, and at the same time supplement related papers on their foreign employees in Vietnam.

5. To manage foreigners working in their enterprises or organizations.

6. To report on the situation of employment of foreigners in Vietnam according to regulations of the Ministry of Labor, War Invalids and Social Affairs.

Article 20.- Implementation effect

1. Foreigners in Vietnam, including pupils, students, spouses of diplomatic title holders, family servants and foreigners who do not fall into the categories specified in Clause 1, Article 1 of this Decree, who wish to work for enterprises, organizations and individuals in Vietnam are not required to compile dossiers and carry out procedures of application for work permits. Enterprises, organizations or individuals that employ foreigners of the above category shall report 07 (seven) days in advance (before the date foreigners start working) to provincial-level Labor, Ward Invalids and Social Affairs Services of localities where foreigners will work on a regular basis on the full name, age, nationality, passport number, dates of starting and finishing work and jobs of the foreigner according to regulations of the Ministry of Labor, War Invalids and Social Affairs.

2. This Decree takes effect 15 days after its publication in "CONG BAO."

This Decree replaces the Government's Decree No. 105/2003/ND-CP of September 17, 2003, detailing and guiding the implementation of a number of articles of the Labor Code regarding the recruitment and management of foreigners working in Vietnam and Decree No. 93/2005/ND-CP of July 13, 2005, amending and supplementing a number of articles of the Government's Decree No. 105/2003/ND-CP of September 17, 2003, detailing and guiding the implementation of a number of articles of the Labor Code regarding the recruitment and management of foreigners working in Vietnam, and repeals all regulations which are contrary to the provisions of this Decree.

For foreign workers who possess work permits that are still valid by the effective date of this Decree, their work permits remain valid and do not need to be renewed.

Article 21.- Implementation responsibilities

1. The Ministry of Labor, War Invalids and Social Affairs shall guide the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of People's Committees of provinces and centrally run cities shall implement this Decree.