REGULATIONS FOR FOREIGNERS WORKING IN VIETNAM
On 30 December 2020, the Government of Vietnam released Decree 152/2020/ND-CP (“Decree 152”) on foreign employment and recruitment policies for Vietnamese employees hired by foreign companies in Vietnam. Decree 152 replaces Decree No. 11/2016/ND-CP of the Government of Vietnam dated 3 February 2016 (“Decree 11”), Decree No. 75/2014/ND-CP of the Government of Vietnam dated 28 July 2014 (“Decree 75”) and its corresponding amendments and supplemental decrees. Decree 152 provides guidance on implementation of the new Labor Code No. 45/2019/QH14, containing guidelines for determination of forms and conditions for foreign workers to qualify to work in Vietnam, work permit (“WP”) exemption regulations, recruitment of foreign workers, renewals and re-issuance of WP.
II. New points:
1. Forms and conditions to qualify as foreign workers working in Vietnam
Moreover, the form of labor of foreign citizens working in Vietnam (“Foreign Workers”) mentioned in Decree 11, according to Article 2.1.(l) of Decree 152, accompanying members of foreign representative bodies who are authorized to work under an international treaty to which Vietnam is a signatory (and their relatives) can be a form of Foreign Worker.
A foreign expert working in Vietnam no longer has to provide a document issued by an overseas organization or enterprise certifying that he or she is an expert. Instead, under Article 3.3.(b) of Decree 152, an appropriate training certificate and a document confirmed by an overseas company or an organization is required to certify five years of experience appropriate for the expected position.
Moreover, under Article 3.6.(b) of Decree 152, a foreign technician is eligible to be recognized as a technician if he or she has at least five years of work experience suitable for the expected position.
2. WP exemption provisions:
Pursuant to Decree 152, a foreigner can be exempted from the WP requirement if he or she contributes at least VND 3 billion (approximately USD 130,400) into the company’s capital; meanwhile, Decree 11 allows a foreigner who owned or was a member of a limited liability company or was a member of the board of management of a joint-stock company to be exempted from a WP regardless of capital contribution.
Additionally, under Decree 152, foreign experts, managers, chief executive officers or technicians who enter Vietnam to work for intervals of up to 30 days, and no more than three times per calendar year, can be exempted from WP.
Decree 152 also provides a new requirement that employers with foreign personnel who are exempted from a WP (or who have a certificate of WP exemption) must inform the Ministry of Labor, Invalids and Social Affairs or the provincial Department of Labor, Invalids and Social Affairs of the foreign employee’s personal information and the expected employment start/end date, at least three days before the expected first working day in Vietnam.
3. Recruitment of Vietnamese personnel working for foreign employers in Vietnam
Under new Decree 152, a foreign employer can now directly recruit Vietnamese workers, without first having to submit a written declaration to the competent authority stating its wish to employ Vietnamese nationals, requesting it to recruit Vietnamese employees on its behalf or exhausting this option as regulated under Decree 75.
4. Reissuance of WP/ Renewal of WP
Under Decree 152, in cases where the remaining validity period of a WP is at least 5 days but not exceeding 45 days, the employers shall have to implement procedures for renewal, instead of applications for re-issuance of a new WP under Decree 11.
A WP is also allowed to be renewed one time with a maximum term of 2 years. After that, the employer has to apply for a new WP for the foreign employee.
Complying with the new Labor Code, Decree 152 not only introduces a broader definition of forms and conditions of labor for foreign workers working in Vietnam but also amends and supplements various articles in previous Decrees. Decree 152 shows that the Vietnamese Government is becoming stricter on hiring foreign workers. Decree 152 took effect on 15 February 2021.