Foreign workers exempt from work permits

Foreign workers exempt from work permits?

Under Clause 1, Article 152 of the Labor Code 2019, enterprises, agencies, organizations, individuals, and contractors may only recruit foreign workers to work as managers, executives, experts, contractors, and technical laborers that Vietnamese workers cannot meet to required production and business.

In addition, Decree 152/2020/ND-CP also stipulates a number of cases where foreign workers are allowed to work in Vietnam but are not required to have a work permit, including:

1. He/she is the owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion dong.
2. He/she is the Chairperson or a member of the Board of Directors of a joint-stock company with a capital contribution value of at least 3 billion dong.
3. Enters Vietnam for a period of less than 03 months to do marketing of a service.
4. Enters Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.
5. Is a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.
6. In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.
7. Gets married with a Vietnamese citizen and wishes to reside in Vietnam.
8. He/she is an intra-company transferee within 11 sectors in the schedule of commitments in services between Vietnam and WTO, including: business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health services, tourism services, recreational and cultural services, and transport services.
9. He/she enters Vietnam to provide professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using official development assistance (ODA) in accordance with regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries.
10. He/she is granted a communication and journalism practicing certificate in Vietnam by the Ministry of Foreign Affairs as per the law.
11. He/she is sent by a foreign competent authority or organization to Vietnam to teach and study at an international school under management of a foreign diplomatic mission or the United Nations; or of a facility established under an agreement to which Vietnam is a signatory.
12. He/she is a volunteer as specified in clause 2 Article 3 of this Decree.
13. He/she enters Vietnam to hold the position of a manager, executive, expert or technical worker for a period of work of less than 30 days and up to 3 times a year.
14. He/she enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law
15. He/she is a student studying at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship.
16. He/she is a relative of a member of foreign representative body in Vietnam as specified in point l clause 1 Article 2 hereof.
17. He/she obtains an official passport to work for a regulatory agency, political organization, or socio-political organization.
18. He/she takes charge of establishing a commercial presence.
19. He/she is certified by the Ministry of Education and Training as a foreign worker entering Vietnam for teaching and research purpose.

Foreign workers working in Vietnam who are not subject to a work permit are entitled to work as workers with a work permit, without having to apply for a work permit, but only need to carry out procedures for certification of workers. Foreign workers are not eligible for work permits.

Procedures for applying for confirmation that foreign workers are not subject to work permits

a. Authority to perform

The Ministry of Labor, War Invalids and Social Affairs or Departments of Labor, War Invalids and Social Affairs of the locality where the employee is expected to work.

b. Time limit: At least 10 days before the date the foreign worker starts working.

c. Dossier: Required documents in an application for exemption from work permit:

1. An application form for certification of exemption from work permit No. 09/PLI Appendix I hereto appended;
2. A fitness to work certificate in accordance with clause 2 Article 9 hereof.
3. An acceptance of demand for foreign workers, unless it is not required;
4. A valid certified true copy of passport as per the law;
5. Documents justifying that the foreign worker is exempt from work permit;

Any document mentioned in points (2), (3) and (4) of this clause is 1 original or certified true copy; if a document is written in a foreign language, it must be consularly legalized, translated into Vietnamese and certified, unless it is exempt from consular legalization under an international treaty to which the Socialist Republic of Vietnam and the concerned foreign country are signatories or under the principle of reciprocity or as per the law.

Implementation procedure:

• Step 1: The requester prepares all the documents as above.
• Step 2: Submit the application file to the Ministry of Labor – Invalids and Social Affairs or the Department of Labor – Invalids and Social Affairs of the locality where the employee is expected to work. After receiving the application, these agencies will issue appointment slips to the requesters.
• Step 3: Within 05 working days from the date of receipt of complete and valid documents, the above agencies will issue a written confirmation that the foreign worker is not eligible for a work permit.

Note: This article is only for informational purposes and is not the legal advice of HTH & Partners. The article belongs to HTH & Partners, so it is subject to change without prior notice.