September 2023
Impact High
New regulations on work permits
Summary
The Vietnamese Government has announced certain changes on work permit regulation on foreign employees working in Vietnam. Many of them are positive developments. Whereas a few of them would be subject to further implementation guidance on the way and extent to which they should be implemented in practice.
See below for full details.
The Details
The Vietnamese Government issued Decree No.70/2023/NĐ-CP (“Decree 70”) on 18 September amending some articles in Decree No.152/2020/NĐ-CP (“Decree 152”) dated 30 December 2020 on foreigners working in Vietnam. Decree 70 was dated 18 September and came into effect on the same day.
Below are some key changes in Decree 70:
• Previously under Decree 152, foreign experts were defined as individuals having a relevant university degree and at least three years working experience relevant to the job position applied for in Vietnam.
Under Decree 70, foreign expert is defined as an individual graduating from a university and with a minimum of three years working experience relevant to the job position applied for in Vietnam. It appears that under Decree 70, university degree not connected to the job position applied for in Vietnam can now be accepted as educational evidence to prove expert status. Further implementation guidance, however, is required on the interpretation of “university graduate” and the document required to support this.
It should be noted that there is no change to the three years working experience relevant to the position applied for in Vietnam under the previous and current Decree.
• Under Decree 152, technical workers are individuals having at least one year of technical training and at least three years working experience relevant to the position applied for in Vietnam. Under Decree 70, technical workers are individuals having at least one year of training and at least three years working experience relevant to the job position in Vietnam. Like the definition of foreign experts, it appears that under the current Decree, for technical workers, the one-year training field does not have to be related to the role or position applied for in Vietnam.
The three years working experience relevant to the position applied for in Vietnam under the previous Decree has not been changed.
If the above conditions of one year training and three years working experience cannot be met, individuals having at least 5 years working experience relevant to the job position in Vietnam are also regarded as technical workers under both Decrees.
• Executive is defined as an individual holding the position of – Head of a Branch; Head of a Representative Office; Head of a business location; or individual authorized by the head of organization to manage a business unit. Decree 70 also provides guidance on supporting documents required to prove executive position.
• Foreigners with a Vietnamese spouse are exempted from work permits. Although exempted from work permit, confirmation of work permit exemption is required to be submitted at least 10 days before commencement of work in Vietnam. Previously, only a notification of exemption is required.
• Where foreigners work in multiple cities/provinces for the same employer, the employer is now required to file an online report with the of Ministry of Labour – Invalids and Social Affairs (“MOLISA”) as well as with the Department of Labour – Invalids and Social Affairs (“DOLISA”) in the cities/provinces where the foreign employee intends to work in. The filing is required to be done at least 3 working days before the employee starts work in the other cities/provinces.
Decree 70, however, is not clear on the threshold of working period where the report is needed to be lodged. This would be subject to further guidance as to whether the reporting is only required if the working period in other cities/provinces exceed a certain threshold.
• Evidence showing recruitment posting for Vietnamese employees in the labour authority’s online portal is now required as part of the foreign recruitment plan submission. The posting to MOLISA’s online portal is required at least 15 days before submission of the foreign recruitment plan. Unlike the other changes, this requirement will be effective from 1 January 2024.
• Employer/sponsor entity is to submit the foreign recruitment plan at least 15 days before the foreign employee (excluding employees of foreign contractors) is expected to start work in Vietnam. Previously, it was at least 30 days before the starting date.
It appears that the previous requirement of submitting foreign recruitment plans 30 days before the foreigner’s start date under Decree 152 has now been separated into two processes under the new Decree (i.e. 15 days for recruitment posting and 15 days for foreign recruitment plan submission).
• Previously, the work permit application/work permit exemption/labour using plan for foreign employees working in the industrial zones are approved and processed by the Industrial Zone Authority. Effective from 18 September, MOLISA and DOLISA are now the authorities responsible for approving and processing these applications.
• Simplification of work permit documentation.
➢ Decree 70 provides some flexibility on proof of working experience. Previously issued work permit is now allowed as an alternative document confirming the number of years of experience of expert/ technical workers.
➢ Apart from submitting notarised copies of passport, Decree 70 provides an alternative whereby certification of such document by the employer can also be accepted.
Allowing previous work permits to prove years of working experience and alternate way on notarization are positive moves by the Government.
• Decree 70 introduces new/updated work permit application forms which are required to be used.
Contact us
Please contact us if you would like to discuss further or require our assistance in complying with labour/ immigration services in Vietnam.
● Brittany Chong, Partner, Vietnam: brittany.chong@vialto.com
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