What conditions should a Viet Nam Enterprise pay attention to when recruiting and employing a foreign employee? What is the procedure? By this article, KAV Lawyers will give some initial information on recruiting and employing the foreign employer procedure in accordance with the Labor Code regulations and the Decree No. 152/2020/ND-CP dated on 20/12/2020 of the State regulating on foreign employees working at Viet Nam and recruiting, managing the Vietnam employees working for foreign organization, individual at Viet Nam (referred as: Decree 152).
First of all, the enterprise should pay attention to the conditions for recruiting employees who is foreigners working at Viet Nam.
According to clause 1 Article 152 Labor Code 2019, the enterprise just allows to recruit the foreign workers working in the position of management, expert and technical worker that the Viet Nam’s employees have not satisfied the demand on manufacturing, doing business.
The procedure for recruiting the foreign employees working at Viet Nam as follows:
Step 1: Explaining the demand on employing the foreign worker
According to clause 2 Article 152 the 2019 Labor Code, the enterprise before recruiting any foreign employees working at Viet Nam shall explain the demand on employing the employees and must be accepted by document of competent agency. The dossiers and steps including:
- Written explanation about the demand for employing foreign workers or written explanation on changing the demand for employing foreign workers in case of having registered for explaining the demand on employing the foreign worker before.
- The power attorney.
- Then, submitting the written explanation to the Ministry of Labor, War Invalids and Social Affairs or the provincial – level People’s Committees, municipalities where foreign workers are going to work.
- The term is before at least 30 days from the day of employment.
- After 10 working days from the day receiving the written explanation, the Ministry of Labor, War Invalids and Social Affairs or the provincial – level People’s Committees shall issue a written approval or non-approval of the employment of foreign workers for each job position.
Noted: The enterprise shall not to implement the procedure for explaining the demand on employing the foreign worker belonging to one of the subject regulated on point b clause 1 Article 4 Decree 152.
Step 2: Requesting for issuing the work permit or the exemption from applying for work permit
After receiving the acceptance paper about employing the foreign worker, the enterprise shall implement to request for work permit. For the case of exemption from applying work permit regulating at Article 154 the 2019 Labor Code and Article 7 Decree 152, the enterprise implements the procedure of requesting for exemption from applying for work permit. For the case of not require to this procedure, the enterprise shall report to the Ministry of Labor, War Invalids and Social Affairs where foreign workers are going to work.
For the case of requesting for issuing the work permit shall prepare:
- Written request for work permit;
- The health certificate or report on medical examination which is issued by the foreign or Vietnamese authorized health organizations or agencies and takes effect within 12 months from the signing date of conclusion of heath status to the date of application or certificates of sufficient health as prescribed by the Minister of Health;
- The criminal record or written certification that the foreign worker is not a criminal or liable to criminal prosecution issued by the foreign or Viet Nam competent authority. Note: The criminal record or written certification that the foreign worker is not a criminal or liable to criminal prosecution must be issued not exceed 06 months from the submission of the application.
- The written certification proving the worker is an expert, management director, technical workers;
- 02 color pictures (4cm x 6cm, white background, frontal face, bareheaded and no colorful glasses) that are taken not exceed 06 months from date of application;
- Document of the foreign enterprise showing that workers are appointed to work at the commercial presence of such foreign enterprise in Vietnam and the document proving that they have been employed by such foreign enterprise for at least 12 months constantly before they are appointed to work in Vietnam (in case foreign employees come to work in the form of internal movement of enterprises);
- Contracts or agreements sign by the Vietnamese partner and the foreign partner, including the agreements on sending foreign workers to work in Vietnam (in case foreign employees come to work in the form of signing contracts or agreements);
- In addition, having other document in specific cases.
For the case of requesting for exemption from applying for work permit shall prepare:
- Written request to confirm the worker is exempted from applying for work permit;
- The health certificate or report on medical examination which is issued by the foreign or Vietnamese authorized health organizations or agencies and takes effect within 12 months from the signing date of conclusion of heath status to the date of application or certificates of sufficient health as prescribed by the Minister of Health;
- Written approval copies for using foreign labor;
- Certified copy of passport in valid;
- Some document for proving that the worker is exempted from applying work permit;
- In addition, having other document in specific cases.
Noted: For the case which is not require for exemption from applying for work permit, the enterprise just needs to report to the Ministry of Labor, War Invalids and Social Affairs these information: the name, age, nationality, passport number, the employer’s name, the implement date and the end of work before 03 days, from the day the employees are going to work regulating at clause 4,6 and 8 Article 154 the 2019 Labor Code and clause 1,2,8 and 11 Article 7 Decree No. 152/2020/ND-CP.
Step 3: Requesting for visa issuance for foreign workers entering Vietnam
After receiving the work permit or exemption from work permit, the enterprise sends a dossier of notification of the guarantee for visa issuance into Vietnam to the Immigration Department.
After that, the enterprise sends the application for a visa to the foreign worker to the Immigration Department.
After receiving the written reply from the Immigration Department, the enterprise shall notify the foreign worker to carry out procedures for receiving the visa at the Vietnam visa-granting authority overseas or at the international border gate (in case of request) as prescribed.
Note:
– LĐ 1: Issued to foreigners working in Vietnam with certification that they are not eligible for work permits, unless otherwise provided for by treaties to which Vietnam is a contracting party.
– LĐ 2: Issued to foreigners working in Vietnam subject to work permits.
Above is information on procedures for recruitment and employment of foreign workers in Vietnam under the 2019 Labor Code and the Decree guiding the recruitment and management of foreign workers in Viet Nam. If you have any further questions or need legal advice, please contact KAV Lawyers at the following contacts:
Email: info@kavlawyers.com or vu@kavlawyers.com
Phone: (+84) 28 6270 7075 or (+84) 949 761 861
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