Regulatory changes on work permit for foreigner working in Vietnam.

Vietnamese Government issued Decree No. 11/2016/ND-CP dated 03 February 2016 guiding a number of articles of the Labour Code on foreigners working in Vietnam (“Decree No. 11”), in which there are four key regulatory changes on work permit for foreigner working in Vietnam will take effective on 1 April 2016. Decree No. 11 will take effect on 01 April 2016

Regulatory changes on work permit for foreigner working in Vietnam

1. The first regulatory change onwork permit for foreigner working in Vietnam in respect of definition of experts/specialists, managers and executive directors.

1.1 Decree No. 11 specifies stricter conditions for experts/specialists, in which it defines “experts” or “specialists” as those who

(i) are certified by a relevant foreign authority/organization as an expert, or
(ii) possess a four-year bachelor degree or above and have at least three years of working experience in the same major being trained. Any exceptions for the conditions of an expert must be approved by the Prime Minister.

1.2  Decree No. 11 specifies clearer definitions of managers and executive directors, in which the definition of  “manager” ” includes

(a) “ managers ” as defined by the Law on Enterprises as being the manager of company, including private enterprises, who is either an owner of a private enterprise, a partner of a partnership, the Chairperson of the Board of Members, a member of the Board of  Members, the company’s President, the Chairperson of the Board of  Directors, a member of the Board of Directors, the Director/General Director, or a person holding another managerial position who is entitled to enter into the company’s transactions on behalf of the company according to the company’s charter, or
(b) the head or deputy head of the agency or organization.

And an “ executive director” is the head and direct manager of units/departments of  organizations or enterprises.

2. The second regulatory change onwork permit for foreigner working in Vietnam in respect of paperwork being more simple than before

2.1  Simplified documentation required for a work permit application:
Decree No. 11 permits a health check certificate to be issued either in Vietnam or in a foreign country, and this certificate does not need to be compliance with Vietnamese law.
Moreover, Decree No. 11 provides that the health certificate may be issued 12 months prior to the date the application is submitted rather than six months previously.

Decree No. 11 permits criminal record certificates can either be issued in Vietnam or in a foreign country, instead of the existing requirement where a foreigner must obtain  a criminal record check in both his or her home country and Vietnam if the foreigner has resided in Vietnam.

2.2  Fewer documents required for work permit applications under special circumstances which applies to foreigners who

(i) currently have an effective work permits and plan to work for another employer in the same position; or
(ii) currently have an effective work permit but plan to work in a different position with the same employer; or
(iii) have an expired work permit and plan to continue working in the same position for the same employer.
Depending on each case, the documents required may change but, in general, it will be fewer documents than those required for a normal work permit application are needed.

3. The third regulatory change onwork permit for foreigner working in Vietnam in respect of  work permit exemption

3.1  Defined term of work permit exemption certificate: 
Decree No. 11 provides that the term of  work permit exemption certificate will not exceed two years. While current regulations are not defined on the term of a work permit exemption certificate.

3.2  More cases of work permit exemption
Decree No. 11 introduces several new circumstances where a foreigner is exempt from work permit requirements, include:
(i) Teachers entering Vietnam to conduct research at international schools under the management of foreign diplomatic missions or international organizations in Vietnam;
(ii) Teachers who are certified by the Ministry of Education and Training entering Vietnam to teach, or to conduct research at Vietnamese educational organizations;
(iii) Students who are studying at foreign schools/institutions entering Vietnam pursuant to an internship contract signed with agencies, organizations or enterprises in Vietnam;
(iv) Family members of staff of foreign diplomatic missions, after being permitted by the Ministry of Foreign Affairs, except otherwise provided by Vietnam’s international treaties;
(v) Foreigners holding public affair passports entering Vietnam to work for state agencies, political organizations, or socio-political organizations; and
(vi) Foreigners entering Vietnam to work as a manager, executive director, expert or technician for a period of less than 30 days consecutively and the accumulative period of working in Vietnam in a year does not exceed 90 days.

3.3 Defined cases where permit exemption certificate is not required:
Decree No. 11 provides that all exempt cases must apply for work permit exemption certificate, except for the following:
(i) foreigners entering Vietnam to work as a manager, executive director, expert or technician for a period of less than 30 days and  the accumulative period of working in Vietnam in a year does not exceed 90 days;
(ii) foreigners entering Vietnam for a period of less than three months  to offer services;
(iii) foreigners entering Vietnam to solve urgent cases that cannot be solved by Vietnamese experts and foreign experts already in Vietnam, for a period of less than three months.

3.4 Prior approval for use of foreign labour not required in some exempt cases:
Decree No. 11 provides that filing of prior approval for the use of these foreign labor is  required either. Prior approval is also not required for these two other cases:
(i) foreigners entering Vietnam for a period of less than three months  to offer services;
(ii) foreigners entering Vietnam to solve urgent cases that cannot be solved by Vietnamese experts and foreign experts already in Vietnam, for a period of less than three months.
(iii) foreign students studying in Vietnam working in Vietnam and
(iv) foreign students who are studying at foreign schools/institutions entering Vietnam pursuant to an internship contract signed with agencies, organizations or enterprises in Vietnam.
(v) foreigners entering Vietnam to work as a manager, executive director, expert or technician for a period of less than 30 days and  the accumulative period of working in Vietnam in a year does not exceed 90 days;

4. The fouth regulatory change onwork permit for foreigner working in Vietnam in respect of Timeline

A work permit can be issued within seven working days from the date of receipt of all required documents, instead of 10 working days as before.
In addition, an application to have a work permit re-issued can now be made from 45 to 5 days prior to the expiration date, rather than only 15 to 5 days days prior to the expiration date as before.

Decree No. 11 will replace Decree No. 102/2013/ND-CP, dated 5 September 2016, guiding a number of articles of the Labour Code on foreigners working in Vietnam and Resolution No. 47/NQ-CP of the  Government dated 8 July 2014 on effective date.

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