New regulations on foreign workers working in Vietnam and Vietnamese workers working for foreigners in Vietnam

On September 18, 2023, the Government issued Decree 70/2023/ND-CP amending and supplementing a number of articles of Decree No. 152/2020/ND-CP dated December 30, 2020 of the Government regulating foreign workers working in Vietnam and recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam.

The Law on Vietnamese Workers Working Abroad under Contracts takes effect from January 1, 2022.

Accordingly, point a, clause 3, Article 3 is amended and supplemented as follows: having a university degree or equivalent and having at least 3 years of work experience suitable for the job position that the foreign employee is expected to work in Vietnam.”. Amend and supplement clause 5, Article 3 as follows: the executive director is a person who falls into one of the following cases: the head of a branch, representative office or business location of an enterprise. The head and directly manages at least one field of an agency, organization or enterprise and is under the direct direction and management of the head of the agency, organization or enterprise.”. Amend and supplement point a, clause 6, Article 3 as follows: having been trained for at least 1 year and having at least 3 years of experience suitable for the job position that the foreign employee is expected to work in Vietnam.”.

Regarding Article 4. Using foreign workers, determine the need to use foreign workers. At least 15 days before the expected date of using foreign workers, employers, except contractors, are responsible for determining the need to use foreign workers for each job position that Vietnamese workers cannot meet and report to the Ministry of Labor - Invalids and Social Affairs or the Department of Labor - Invalids and Social Affairs where the foreign workers are expected to work according to Form No. 01/PLI Appendix I issued with this Decree.

During the implementation process, if there is a change in the need to use foreign workers in terms of position, job title, form of work, number, and location, the employer must report to the Ministry of Labor - Invalids and Social Affairs or the Department of Labor - Invalids and Social Affairs according to Form No. 02/PLI Appendix I issued with this Decree at least 15 days in advance from the expected date of use of foreign workers. In the case of foreign workers specified in Clauses 3, 4, 5, 6 and 8, Article 154 of the Labor Code and Clauses 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14, Article 7 of this Decree, the employer does not have to determine the need to use foreign workers.

From January 1, 2024, the announcement of recruitment of Vietnamese workers for positions expected to recruit foreign workers will be made on the Electronic Information Portal of the Ministry of Labor, War Invalids and Social Affairs (Department of Employment) or the Electronic Information Portal of the Employment Service Center decided to be established by the Chairman of the People's Committee of the province or centrally-run city within at least 15 days from the expected date of reporting to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs where the foreign worker is expected to work.

The recruitment notice shall include: position and job title, job description, quantity, requirements for qualifications, experience, salary, working time and location. After failing to recruit Vietnamese workers for positions recruiting foreign workers, the employer shall be responsible for determining the need to use foreign workers according to the provisions of Point a, Clause 1 of this Article. The Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs shall issue a written approval or disapproval of the use of foreign workers for each job position according to Form No. 03/PLI Appendix I issued with this Decree within 10 working days from the date of receipt of the explanatory report or explanatory report on changes in the need to use foreign workers.

Service enterprises must maintain the conditions stipulated in Article 10 of the Law on Vietnamese Workers Working Abroad under Contract. Illustrative photo

Add Clause 3 to Article 6 as follows: “3. In case a foreign employee works for an employer in many provinces or centrally run cities, within 3 working days from the date the foreign employee starts working, the employer must report via the electronic environment to the Ministry of Labor - Invalids and Social Affairs and the Department of Labor - Invalids and Social Affairs where the foreign employee comes to work according to Form No. 17/PLI Appendix I issued with this Decree.”

Amend and supplement Clause 6 of Article 7 as follows: “6. Being sent to Vietnam by competent foreign agencies and organizations to teach or to work as managers or executive directors at educational institutions proposed to be established in Vietnam by foreign diplomatic missions or intergovernmental organizations; institutions and organizations established under international treaties to which Vietnam has signed or participated.” Amend and supplement Clause 14 of Article 7 as follows: “14. Being certified by the Ministry of Education and Training that foreign workers enter Vietnam to perform the following jobs: Teaching, research. Working as managers, executive directors, principals, vice principals of educational institutions proposed to be established in Vietnam by foreign diplomatic missions or intergovernmental organizations.”.

Amend and supplement a number of points and clauses of Article 9 as follows: Amend and supplement Clause 1 of Article 9 as follows: The employer's written request for a work permit shall be in accordance with Form No. 11/PLI Appendix I issued with this Decree. In case a foreign employee works for an employer at multiple locations, the written request for a work permit must list all work locations.”

Amend and supplement points a and b, clause 4, Article 9 as follows: Documents proving that an individual is a manager or executive director as prescribed in clauses 4 and 5, Article 3 of this Decree include the following 3 types of documents: Company charter or operating regulations of an agency, organization or enterprise. Business registration certificate or certificate of establishment or decision on establishment or other documents of equivalent legal value; Resolution or appointment decision of an agency, organization or enterprise. Documents proving that an individual is an expert or technical worker as prescribed in clauses 3 and 6, Article 3 of this Decree include the following 2 types of documents:

Diploma or certificate or certification; Confirmation document from an agency, organization or enterprise abroad on the number of years of experience of the expert, technical worker or work permit that has been granted or confirmation that the work permit is not required to be granted.”.

Amend and supplement the name of Clause 8, Article 9 as follows: Documents related to foreign workers, except for foreign workers specified in Point a, Clause 1, Article 2 of this Decree.” Amend and supplement Point e, Clause 8, Article 9 as follows: For foreign workers working under the provisions of Point i, Clause 1, Article 2 of this Decree, there must be a document from the foreign agency, organization or enterprise sending the foreign worker to work in Vietnam and suitable for the expected job position or documents proving that the worker is a manager as prescribed in Clause 4, Article 3 of this Decree.”.

Add point c, clause 9, Article 9 as follows: For foreign workers who are experts or technical workers who have been granted a work permit and have had it extended once and want to continue working in the same job position and job title stated in the work permit, the application for a new work permit shall include the documents specified in clauses 1, 2, 5, 6, 7, 8 of this Article and a copy of the granted work permit.”

Amend and supplement Clause 2, Article 11 as follows: Within 05 working days from the date of receipt of a complete application for a work permit, the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs of the place where the foreign worker is expected to work shall issue a work permit to the foreign worker according to Form No. 12/PLI Appendix I issued with this Decree. In case the work permit is not issued, a written response stating the reasons shall be issued.

The work permit is A4 size (21 cm x 29.7 cm), consisting of 2 pages: page 1 is blue; page 2 has a white background, blue pattern, with a star in the middle. The work permit is coded as follows: code of the province, centrally-run city and code of the Ministry of Labor - Invalids and Social Affairs according to Form No. 16/PLI Appendix I issued with this Decree; the last 2 digits of the year of license issuance; type of license (new issuance is code 1; renewal is code 2; re-issuance is code 3); serial number (from 000.001).

In case the work permit is an electronic copy, it must comply with the provisions of relevant laws and meet the content according to Form No. 12/PLI Appendix I issued with this Decree." Amend and supplement Clause 3, Article 12 as follows: change one of the following contents: full name, nationality, passport number, workplace, change the name of the enterprise without changing the enterprise code stated in the valid work permit. Amend and supplement Clause 7, Article 17 as follows: "One of the documents specified in Clause 8, Article 9 of this Decree proving that the foreign employee continues to work for the employer according to the content of the granted work permit, except for the case where the foreign employee works according to the provisions of Point a, Clause 1, Article 2 of this Decree.".

Amend and supplement Point b, Clause 1, Article 22 as follows: Organizations that are decentralized, authorized, assigned tasks, placed orders or bid by the provincial People's Committee. Amend and supplement Point b, Clause 4, Article 27 as follows: Organizations that are decentralized, authorized, assigned tasks, placed orders or bid by the provincial People's Committee to recruit and manage Vietnamese workers working for foreign organizations and individuals shall report to the Department of Labor, War Invalids and Social Affairs.”.

Amend and supplement Point a, Clause 1, Article 30 as follows: Approve the need to use foreign workers; confirm that they are not subject to work permit issuance; issue, reissue, extend and revoke work permits for foreign workers in one of the following cases: Working for employers specified in Point g, Clause 2, Article 2 and employers specified in Points c, d, e, Clause 2, Article 2 of this Decree permitted to be established by the Government, Prime Minister, ministries, ministerial-level agencies, and agencies under the Government. Working for an employer in many provinces and centrally run cities.”.

Amend and supplement Point c, Clause 1, Article 30 as follows: Unify state management of recruitment and management of foreign workers working in Vietnam from central to local levels and manage Vietnamese people working for foreign organizations and individuals in Vietnam." Amend and supplement Clause 3, Article 30 as follows: Responsibilities of the Ministry of National Defense: Coordinate with competent agencies to manage foreign workers and Vietnamese workers working for foreign organizations and individuals in Vietnam to implement legal provisions on ensuring security and order in strategic, key areas and areas of national defense importance.

Direct the Border Guard to coordinate with functional forces to manage and inspect Vietnamese workers working for foreign organizations and individuals in Vietnam and foreign workers working in border areas, border gates, islands and sea areas to firmly protect the sovereignty, security and national borders of the Fatherland. Amend and supplement Point a, Clause 4, Article 30 as follows: Periodically, monthly provide information on foreign workers granted visas with the symbols: DN1, DN2, LV1, LV2, LD1, LD2, DT1, DT2, DT3, DT4 working for agencies, organizations and enterprises to the Ministry of Labor - Invalids and Social Affairs.

Amend and supplement Point a, Clause 6, Article 30 as follows: Approve the need to use foreign workers; confirm that they are not subject to work permit issuance; issue, reissue, extend and revoke work permits for foreign workers in one of the following cases: Working for employers specified in Points a, b, h, i, k, l, Clause 2, Article 2 and agencies and organizations specified in Points c, d, e, Clause 2, Article 2 of this Decree established by the People's Committee of the province, specialized agencies under the People's Committee of the province, and the People's Committee of the district. Working for employers at multiple locations in the same province or centrally run city.

Replace and supplement a number of words and phrases in the following points, clauses, articles and appendices: Replace the phrase "Chairman of the Provincial People's Committee" in Clause 1, Article 5 with the phrase "Department of Labor - Invalids and Social Affairs"; Replace the phrase "Chairman of the Provincial People's Committee directs" with the phrase "Department of Labor - Invalids and Social Affairs proposes" in Clause 2, Article 5. Replace the phrase "Clause 4, 6 and 8, Article 154" with the phrase "Clause 4 and Clause 6, Article 154" and the phrase "3 days" with the phrase "3 working days" in Clause 2, Article 8. Replace the phrase "translated into Vietnamese and certified" with the phrase "translated into Vietnamese and notarized or certified" in Point e, Clause 3, Article 8.

Replace the phrase “translated into Vietnamese and certified” with the phrase “translated into Vietnamese and notarized or certified” in Clause 10, Article 9 and Clause 4, Article 23. Replace the phrase “Documents specified in Clauses 3 and 4 of this Article” with the phrase “Documents specified in Clause 3 of this Article” in Clause 5, Article 13. Replace the phrase “translated into Vietnamese” with the phrase “translated into Vietnamese and notarized or certified” in Clause 5, Article 13 and Clause 8, Article 17. Replace the phrase “Certified copy of passport” with the phrase “Certified copy of passport or copy of passport certified by the employer” in Point d, Clause 3, Article 8; Clause 7, Article 9 and Clause 5, Article 17.

Replace the phrase "People's Committee of the province/city......" with the phrase "Department of Labor, War Invalids and Social Affairs..." in Form No. 03/PLI Appendix I issued with Decree No. 152/2020/ND-CP . Replace the phrase "Director/Chairman of the Provincial People's Committee" with the phrase "Director/Director", the phrase "According to the request in Document No." with the phrase "According to the request and information provided in Document No." in Form No. 03/PLI Appendix I issued with Decree No. 152/2020/ND-CP . Replace the phrase "Chairman of the People's Committee of the province/city..." with the phrase "Department of Labor, War Invalids and Social Affairs..." in Form No. 04/PLI, Form No. 05/PLI, Form No. 06/PLI Appendix I issued with Decree No. 152/2020/ND-CP . Replace the phrase “TM.

People's Committee of province, city.../Chairman" with the phrase "Director" in Form No. 06/PLI Appendix I issued with Decree No. 152/2020/ND-CP . Add the phrase "(Enterprise/organization) hereby guarantees that the above information is true. If incorrect, (enterprise/organization) shall take full responsibility before the law" after item 24 of Form No. 09/PLI Appendix I issued with Decree No. 152/2020/ND-CP . Add the phrase "Department of Immigration Management (Ministry of Public Security)" in the "Recipient" section of Form No. 13/PLI Appendix I issued with Decree No. 152/2020/ND-CP .

Abolish Clause 4, Article 13; abolish Points c, d, dd, Clause 5 and Point g, Clause 6, Article 30. Abolish Point a, Clause 6a, Article 30. Decree No. 152/2020/ND-CP dated December 30, 2020 of the Government regulating foreign workers working in Vietnam and recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam has been amended and supplemented by Decree No. 35/2022/ND-CP dated May 28, 2022 of the Government regulating the management of industrial parks and economic zones.

Abolish a number of provisions of Decree No. 35/2022/ND-CP dated May 28, 2022 of the Government regulating the management of industrial parks and economic zones, abolishing the opening paragraph "Issuing, re-issuing, extending, revoking work permits and confirming that foreign workers are not subject to work permit issuance for foreigners working in industrial parks and economic zones" and the phrase "receiving reports on the situation of using foreign workers" at Point d, Clause 2, Article 68. Abolish the paragraph "receiving explanatory reports of enterprises in industrial parks and economic zones on the need to use foreigners for each job position that Vietnamese people cannot meet" at Point c, Clause 3, Article 68. This Decree takes effect from September 18, 2023./.

Dan Hung