Frequently asked questions about work permits

Summary of questions about foreign work permits to work at enterprises.

Work permit is an extremely important document for foreign workers who want to work in Vietnam in general and work in businesses in particular. Siglaw synthesizes questions about work permits for foreigners working at enterprises so that businesses employing foreign workers or foreign workers understand more about this issue.

Question 1: Why only allow foreign workers to work in four positions as managers, executives, experts and technical workers working at enterprises?

Answer: The deep purpose of work  permits is to protect domestic workers, reduce foreign labor competition with Vietnamese workers, so the state only allows high-quality foreign workers in managerial positions,  CEOs, experts, technical workers are allowed to work in Vietnam.

Question 2: When should I carry out procedures for applying for a work permit for foreign workers working at enterprises?

Answer: Enterprises need to carry out procedures for applying for work permits for foreigners working in enterprises in the following cases:

• At least 30 days before the enterprise or organization wants to recruit foreign workers into Vietnam.
• When foreigners do not fall into the 20 cases of work permit exemption.
• When the foreign worker has been granted a valid work permit but needs to work for another employer in the same job position and the same job title stated in the work permit.
• When the foreign worker has been granted a work permit and is still valid, but changes the job position or job title or form of work stated in the work permit in accordance with the law but does not change the employer.

Question 3: Who will have to apply for a work permit and how does it work?

Answer: The employer is the person who carries out the procedures for applying for a work permit. According to the law, employers are enterprises, agencies, organizations, cooperatives, households and individuals that hire or employ employees to work for them as agreed; In case the employer is an individual, it must have full civil act capacity. Note that there must be a written report explaining the demand for labor use  30 days before the  expected date of use to the competent agency (Department of Labor, War Invalids and Social Affairs or Management Board of industrial parks). The main content is to declare to state agencies that this need is real and justified. Once there is a written confirmation, the enterprise will carry out procedures to apply for a work permit for the foreign worker. 

Question 4: So where do businesses need to apply for a work permit?

Answer: Normally, the employer will submit an application for a work permit for foreign workers of the company at the Department of Labor, War Invalids and Social Affairs in the province where the enterprise is located (located outside the industrial park). In case the enterprise is located in an industrial park, the agency competent to issue a work permit is the Industrial Park Management Board. In addition, since Circular 23/2017  /TT-BLDTBXH dated August 15, 8, 2017 of the Ministry of Labor, War Invalids and Social Affairs guiding the issuance of work permits for foreign workers working in Vietnam electronically officially came into effect, you can apply electronically. However, after that, you still need to submit the original documents for comparison and comparison.

Question 5: Is there a stipulation on the duration of the written approval of the need to employ foreign workers?

Answer: According to the provisions of Form No. 03 of Circular No. 18/2018/TT-BLDTBXH dated 30/10/2018  of the Ministry of Labor, War Invalids and Social Affairs on amending and supplementing a number of articles of Circulars related to administrative procedures within the scope of state management functions of the Ministry of Labor, War Invalids and Social Affairs, in the written notice of approval of public positions The employment of foreign workers must have a starting and ending working period similar to the term of the work permit not exceeding 02 years. Thus, the time for application for issuance, re-issuance of a work permit and confirmation of not being eligible for a work permit must be within the period (start and end of work) of the existing written approval.

Question 6: The enterprise has received the written approval of the need to employ foreign workers notified by the Department of Labor and Social Affairs, but due to the consular legalization procedures of some foreign personal documents (certificate of experience, university degree being abroad for the position of expert takes a lot of time, so it cannot be done in time the custom of issuing work permits before the foreign worker starts working. So if foreign workers work at enterprises before being granted a work permit, is there any risk?

Answer: According to the provisions of Clause 1, Article 11 of the Government’s Decree No. 152/2020/ND-CP dated 30/12/2020 regulating foreign workers working in Vietnam and recruiting and managing Vietnamese workers working for foreign organizations and individuals in Vietnam.  At least 15 working days before the date the foreign worker is expected to start working for the enterprise, the employer must submit a dossier of application for a work permit to the competent state agency. Therefore, foreigners must be granted a work permit before entering Vietnam to work. 

In case a foreign worker working in Vietnam does not have a work permit or does not have a written confirmation of not being eligible for a work permit as prescribed, both the foreign worker and the enterprise may be administratively sanctioned, in addition to the deportation.

Question 6: What cases are not eligible for work permits?

Answer: According  to Article 111 of the Labor Code 2019,  one of the conditions for foreign workers to work in Vietnam is to have a work permit issued by the competent authority of Vietnam. However, not all foreign workers need a work permit. Article 7 of Decree 152/2020/ND-CP stipulates 20 cases in which foreign workers are not eligible for work permits, including:

• Being the owner or capital contributing member of a limited liability company with a capital contribution value of VND 3 billion or more.
• Being the Chairman of the Board of Directors or a member of the Board of Directors of a joint-stock company with a capital contribution value of VND 3 billion or more.
• Internal mobility of enterprises within the scope of 11 service sectors in Vietnam’s schedule of service commitments to the World Trade Organization, including: business, information, construction, distribution, education, environment, finance, healthcare, tourism, culture, entertainment and transportation.
• Entering Vietnam to provide professional and technical consultancy services or perform other tasks in service of research, development, appraisal, monitoring, evaluation, management and implementation of programs and projects using official development assistance (ODA) sources as prescribed or agreed upon in international agreements on ODA signed between competent agencies of Vietnam and foreign countries.
• To be licensed by the Ministry of Foreign Affairs to conduct information and press activities in Vietnam in accordance with the provisions of law.
• Being sent to Vietnam by competent agencies or organizations of foreign countries to teach and research at international schools under the management of foreign diplomatic missions or the United Nations; establishments and organizations established under agreements to which Vietnam has signed or acceded.
• Volunteer.
• Entering Vietnam to work as managers, executives, experts or technical workers with working time of less than 30 days and not more than 03 times in 01 year.
• Enter Vietnam to implement international agreements signed by central and provincial agencies and organizations in accordance with law.
• Students studying at overseas schools and training institutions have internship agreements in agencies, organizations and enterprises in Vietnam; trainees and trainees on Vietnamese ships.
• Relatives of members of foreign representative offices in Vietnam specified at Point l, Clause 1, Article 2 of this Decree.
• Have a civil service passport to work for state agencies, political organizations, socio-political organizations.
• The person responsible for establishing a commercial presence.
• To be certified by the Ministry of Education and Training of foreign workers to enter Vietnam for teaching and research.
• Be the head of a representative office, project or take main responsibility for the operation of international organizations or foreign non-governmental organizations in Vietnam.
• Entering Vietnam for less than 03 months to offer services.
• Entering Vietnam for less than 03 months to handle incidents, complex technical and technological situations that arise that affect or threaten to affect production and business that cannot be handled by Vietnamese experts and foreign experts currently in Vietnam.
• Being a foreign lawyer who has been granted a license to practice law in Vietnam according to the lawyer’s regulations.
• Cases prescribed by international treaties to which the Socialist Republic of Vietnam is a contracting party.
• Foreigners who marry Vietnamese and live in the territory of Vietnam.

In this case, the employer shall make a written report explaining the needs and make a dossier of request to confirm that the foreign worker is not eligible for a work permit as prescribed by law

Question 7: In case a foreign worker who has been granted a work permit at the old enterprise now needs to work in parallel at another enterprise, is it necessary to make an application for a work permit?

Answer: Although the law does not specify how many work permits a foreign worker minimum, at  least 15 working days before the date the foreign worker is expected to start working for the employer, the employer must submit a dossier of application for a work permit to the competent authority where the employee is located Foreign dynamics are expected to work. Thus, in case a foreign worker who has been granted a work permit wishes to work at another enterprise, he must follow procedures to be granted a work permit according to regulations.

Question 8: In case a foreign worker has been granted a work permit but changes his position and job title in that enterprise, does he have to reapply for a work permit?

Answer: According to the provisions of  Article 9 of Decree 152/2020/ND-CP, the case of a foreign worker who has been granted a valid work permit but wants to change the job position is considered a special case. In this case, foreign workers as well as employers need to prepare documents to proceed to work permit issuance to match their current job position but simplified with some documents specified in Point b, Article 9 of Decree No. 152/2020/ND-CP.

Question 9: My company has a case where foreigners have quit working in previous companies and worked through many countries, it is not easy to get confirmation of 03 years of experience. So if I apply for an expert position, how will my company work?

Answer: The proof of experience of foreign workers shall comply with the provisions of  Clause a Article 4 of Resolution 105/2021/NQ-CP: “Documents proving experts and technical workers are: Diplomas, certificates, certificates; written certification of overseas agencies, organizations or enterprises on the number of years of experience of experts, technical workers or work permits that have been issued to prove experience.” . Therefore, foreigners working in the position of external experts have a university degree and a certificate of experience of at least 03 years or more. However, for foreigners who have worked in many different countries and companies, they can use supporting documents or written confirmations of foreign agencies, organizations and enterprises in other countries to accumulate proof of their years of working experience. The above documents of foreign countries must be consular legalized, translated into Vietnamese and authenticated before proceeding with the application for a work permit. Except for cases of consular legalization exemption under international treaties to which the Socialist Republic of Vietnam and the foreign countries concerned are both contracting parties or on the principle of reciprocity or as prescribed by law. This represents the facilitation between the state for foreign workers who want to work in Vietnam.

Question 10: What is considered an executive director position, what are the documents that can prove the position?

Answer: According to the provisions of  Clause 5 Article 3 of Decree No. 152/2020/ND-CP, “The CEO is the head and directly managing the unit under the agency, organization or enterprise”. Thus, the executive director includes the heads of departments and departments of enterprises that are subordinate units of foreign agencies, organizations and enterprises. The dossier includes:

• Work permits, labor contracts, appointment decisions that identify such foreign workers who have worked in managerial positions, executive directors.
• The written certification is that the manager or executive director is certified by the agency, organization or enterprise in which the foreign worker has worked.
• A copy of the business registration

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