March 5, 2014
On November 1, 2013 the Vietnamese Ministry of Labor, Invalid and Social Affairs (MOLISA) implemented Decree 102, which defines the implementation of a new Labor Code as it relates to foreign nationals working in Vietnam (see our Global Brief of September 25, 2013). However, due to the lack of an accompanying Guidance Circular, Provincial Labor Departments have been unsure of how to implement the new decree. In several locations this has resulted in delays of work permit applications, and even in suspension of applications altogether (see our Blog of 27 November 2013).
Last week, MOLISA published the related Guidance Circular clarifying many of the remaining questions regarding specific implementation details of Decree 102.
Demand on Using Foreigners
As stated in the Decree itself, employers will be required to report their demand for foreign nationals on an annual basis and seek approval from the People’s Committee of the province/city where the company’s head office is located. If the demand changes during the year an updated demand must be submitted.
The Guidance Circular has now clarified that the demand will need to be submitted to the Provincial Labor Department at least 30 days prior to the scheduled date of start of employment. The Labor Department will then forward it to the relevant People’s Committee, who will in turn respond within 15 days with their approval or rejection of the demand.
It is important to note that only once the approval of the demand has been received will the Labor Department start processing any work permit applications for positions included in the demand. The Guidance Circular does not define the criteria based on which the People’s Committee should approve or reject the demand.
Work Permit Eligibility
The Guidance Circular also provides clarification on acceptable documentation to prove that an employee qualifies for the position of Manager or Executive, or for the positions of “Specialist” or “Technical Worker”.
- Managers and Executives are required to submit a document which verifies the Manager/Executive position and experience. Examples of accepted documents are a valid or expired work permit from any country, a labor contract from any country, an assignment letter confirming that the foreigner national has worked as a Manager or Executive, or any other document issued by former employer(s) that confirms the foreign national was a Manager/ Executive.A University Degree or a Work Testimonial of 5 years work experience is no longer required.
- Specialists will need to provide either of the following documents:
1. At least a Bachelor Degree or equivalent and Work Testimonial(s) for at least 5 years work experience. Both the degree and work testimonials must be in a field that matches the targeted job position in Vietnam.
2. A document issued by an overseas jurisdictional body / organization certifying the applicant to be a specialist in their field;
3. A document issued by the overseas employer certifying that the foreigner is a specialist in targeted job position in Vietnam.
- Technical workers need to submit documentation or a confirmation letter issued by an overseas jurisdictional body / organization or the overseas employer certifying that the foreigner has been trained for at least 1 year in the technical fields that match with the targeted position in Vietnam. In addition, a Work Testimonial issued by the current or former employer(s) should be provided, which shows at least 3 years of experience in a related technical field.
Work Permit Exemption
An additional circular is expected to be published before the end of this month containing guidelines on how to assess if a foreign employee qualifies for a work permit exemption as a corporate transferee operating within the 11 sectors listed in Vietnam’s WTO service commitment. Pro-Link GLOBAL continues to monitor the situation closely with our PLG | KGNM Correspondent Office Vietnam and will provide further information as it becomes available.