Application for a work permit for a foreign contractor’s employee

According to the 2019 Labor Code, a work permit is a mandatory requirement for foreign workers to legally work in Vietnam. While the Labor Code and its guiding documents have specific regulations for individuals and organizations as employers, there are also specific provisions for contractors when hiring foreign workers. This article will clarify the procedures and requirements for contractors to obtain work permits for foreign workers. 

Legal basis for work permits 

• Labor Code 2019
• Decree 152/2020/ND-CP on foreign workers working in Vietnam and recruitment and management of Vietnamese workers working for foreign employers in Vietnam

Essential points to remember when employing foreign workers for contractors in Vietnam

Clause 1, Article 152 of the Labor Code stipulates that when hiring for managerial, executive, expert, and technical positions, contractors must prioritize Vietnamese workers. This means that foreign workers can only be hired for these positions if there are no suitable Vietnamese candidates available to meet production and business needs.

This is also why Clause 3 of the same article requires contractors to declare the quantity, qualifications, expertise, and experience of foreign workers they intend to hire, which must be approved in writing by the competent state agency.

Procedure for obtaining a work permit for a foreign worker employed by a contractor

Based on the provisions of Articles 5, 8, and 9 of Decree 152/2020/ND-CP, contractors must undertake the following steps:

Step 1: Determine whether the foreign worker is eligible for a work permit.

According to Article 8 of Decree 152/2020/ND-CP, certain categories of foreign workers employed by contractors are exempt from the work permit requirement. In such cases, the Ministry of Labor, Invalids and Social Affairs, or the provincial Department of Labor, Invalids and Social Affairs shall confirm that the foreign worker is exempt from the work permit requirement.

Consequently, contractors must either initiate a procedure to confirm that the foreign worker is exempt from the work permit requirement or fulfill a reporting obligation, depending on the specific circumstances.

Certification Procedure: The contractor shall submit a request to the Ministry of Labor, Invalids and Social Affairs or the provincial Department of Labor, Invalids and Social Affairs where the foreign worker is intended to work at least 10 days before the foreign worker’s commencement date, to confirm that the foreign worker is exempt from the work permit requirement.

Reporting Procedure: In cases stipulated in Clauses 4, 6, and 8 of the Labor Code and Clauses 1, 2, 8, and 11 of this Decree, the contractor shall report to the Ministry of Labor, Invalids and Social Affairs or the provincial Department of Labor, Invalids and Social Affairs where the foreign worker is intended to work at least 3 days before the foreign worker’s commencement date. The reported information shall include full name, age, nationality, passport number, name of the foreign employer, commencement date, and end date of employment.

The contractor shall apply to request confirmation that the foreign worker is exempt from the work permit requirement as stipulated in Clause 3, Article 8 of Decree 152/2020/ND-CP. This application shall include:

1. A request for confirmation that a foreign worker is exempt from the work permit requirement, following Form No. 09/PLI, Appendix I, issued with Decree 152/2020/ND-CP.
2. A health certificate or medical examination certificate as prescribed in Clause 2, Article 9 of Decree 152/2020/ND-CP
3. A document approving the need to use foreign workers, except in cases where it is not necessary to determine the need for foreign workers.
4. A certified copy of a valid passport
5. Documents to prove that the foreign worker is exempt from the work permit requirement.
6. The documents specified in points b, c, and d of this clause shall be original copies or certified copies. If the documents are issued by a foreign authority, they must be legalized, translated into Vietnamese, and certified, unless they are exempt from legalization under international treaties to which the Socialist Republic of Vietnam and the relevant foreign country are parties or according to the principle of reciprocity or other legal provisions.

Within 05 working days from the date of receipt of a complete application from the contractor requesting confirmation that the foreign worker is exempt from the work permit requirement, the Ministry of Labor, Invalids and Social Affairs or the provincial Department of Labor, Invalids and Social Affairs shall issue a written confirmation that the foreign worker is exempt from the work permit requirement, following Form No. 10/PLI, Appendix I, issued with Decree 152/2020/ND-CP. In case of refusal, a written notification stating the reasons shall be issued.

If the foreign worker is required to obtain a work permit, proceed to Step 2.

Step 2: Proceed with the declaration and request.

• The declaration shall include details on the quantity, qualifications, expertise, and experience of the foreign workers required to execute the contract in Vietnam.
• The request shall involve the contractor submitting a proposal to the People’s Committee Chairman of the province where the contract is being executed, regarding the recruitment of Vietnamese workers for positions that were originally intended for foreign workers.

Both procedures are conducted simultaneously through the declaration and request process as stipulated in Form No. 04/PLI, Appendix I of Decree 152/2020/ND-CP.

Depending on the number of employees to be recruited, there is a specific time limit (a maximum of 2 months for requests to recruit 500 or more Vietnamese workers; and a maximum of 1 month for requests to recruit between 100 and 499 Vietnamese workers) for the Chairman of the Provincial People’s Committee to instruct local agencies and organizations to coordinate with other local agencies to introduce and supply Vietnamese workers to the contractor. If, after this period, Vietnamese workers are not introduced or supplied to the contractor, the Chairman of the Provincial People’s Committee shall consider and decide to approve the contractor’s recruitment of foreign workers for positions where Vietnamese workers cannot be recruited (according to Form No. 06/PLI, Appendix I of Decree 152/2020/ND-CP).

Step 3: Prepare and apply for a foreign worker’s work permit on behalf of the contractor.

Application for a foreign worker’s work permit submitted by the contractor (as per Article 9, Decree 152/2020/ND-CP)

 

1. Contractor’s application for a work permit (as prescribed in Form No. 11/PLI, Appendix I of this Decree)
2. A health certificate issued by a competent health authority of a foreign country or Vietnam, valid for 12 months from the date of the health examination, or a certificate of good health as prescribed by the Minister of Health.
3. A criminal record certificate or a document certifying that the foreign worker is not currently serving a sentence has not had their criminal record expunged, or is not currently being prosecuted in a foreign country or Vietnam.

A criminal record certificate or a document certifying that the foreign worker is not currently serving a sentence has not had their criminal record expunged, or is not currently being prosecuted, issued within the past 6 months from the date of issuance to the date of submission.

1. Documents proving the foreign worker is a manager, executive, expert, or technical worker as defined in clauses 4, 5, and 3, 6 of Article 3 of this Decree, including diplomas, certificates, and letters of attestation from foreign organizations or enterprises regarding the number of years of experience as an expert or technical worker.”
2. Documents proving the position of manager or executive as stipulated in clauses 4 and 5, Article 3 of this Decree.
3. Documents proving the position of an expert or technical worker as stipulated in clauses 3 and 6, Article 3 of this Decree, including diplomas, certificates, and letters of attestation from foreign organizations or enterprises regarding the number of years of experience as an expert or technical worker.
4. A diploma issued by a competent authority that meets the qualifications and standards set forth in the Education Law, the Higher Education Law, the Vocational Education Law, and the Regulations on the operation of foreign language and computer centers issued by the Minister of Education and Training.
5. Two recent color passport-sized photographs (4cm x 6cm) with a white background, showing a front view of the face with no head covering or tinted glasses.
6. A document approving the demand for foreign workers, except in cases where such a demand is not required.
7. A notarized copy of a valid passport.
8. Documents related to the foreign worker:
9. a) For foreign workers as defined in clause b, paragraph 1, Article 2 of this Decree, a document from the foreign enterprise sending the worker to work at the commercial presence of that enterprise in Vietnam and a document proving that the foreign worker has been employed by that foreign enterprise for at least 12 consecutive months prior to working in Vietnam;

Note on the legalization and certification of documents: 

The documents specified in clauses 2, 3, 4, 6 and 8 of this Article shall be original or certified copies; if they are foreign documents, they must be legalized, unless exempted from legalization under international treaties to which the Socialist Republic of Vietnam and the relevant foreign country are both parties, or on the basis of the principle of reciprocity, or as otherwise provided by law; they must be translated into Vietnamese and certified in accordance with Vietnamese law.

Issuing work permits for foreign workers of contractors.

• At least 15 days prior to the expected start date of the foreign worker in Vietnam, the contractor shall submit an application for a work permit to the Ministry of Labour, Invalids and Social Affairs or the Department of Labour, Invalids and Social Affairs of the locality where the foreign worker is expected to work.
• Within 05 working days from the date of receipt of a complete application for a work permit, the Ministry of Labour, Invalids and Social Affairs or the Department of Labour, Invalids and Social Affairs of the locality where the foreign worker is expected to work shall issue the work permit to the contractor. If the work permit is not granted, a written reply stating the reasons shall be issued.

What should be done after the contractor has been granted a work permit for a foreign worker?

After being granted a work permit for a foreign worker, if the foreign worker works in Vietnam under an employment contract, the contractor shall carry out the following procedures:

• Enter into a written employment contract in accordance with Vietnamese labor law before the expected start date of working for the employer. Afterward, the contractor must send the signed employment contract, as required, to the competent authority that granted the work permit. The employment contract must be an original or a certified copy.
• The contractor shall pay social insurance for the foreign worker.
• Report the use of foreign workers (Article 6 of this Decree): Before July 5th and January 5th of the following year, the contractor shall report on the use of foreign workers in the first six months and annually according to Form No. 07/PLI Appendix I issued together with this Decree. The deadline for closing the data for the first six months is from December 15 of the previous reporting period to June 14 of the reporting period, and the deadline for closing the annual data is from December 15 of the previous reporting period to December 14 of the reporting period.

With years of experience in providing work permit consulting services for foreign workers of contractors in Vietnam, and having successfully served over 5,000+ clients, we are confident that Siglaw’s work permit services for foreign workers will surely satisfy our clients and save them both time and money.

Siglaw Law Firm

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