Legal News

[Labor] Regarding Decree 70/2023/ND-CP on the issuance of work permits to foreigners

2023/09/21

On September 18, 2023, the government promulgated and implemented Decree 70/2023/ND-CP (hereinafter called “Decree 70”) amending and supplementing Decree 152/2020/ND-CP (hereinafter called “Decree 152”) which is regarding foreign workers.
In this report, we summarize the changes.

1. Modification of employment conditions for experts, managers, and engineers
Decree 70 partially removes the requirement that foreign professional and technical workers must have “educated work experience in a specialized field”, Instead, in Decree 70, it is written as “qualify for the position for which they plan to work in Vietnam”. Therefore, it is no longer necessary to match university graduation majors and job descriptions, which had previously been a problem for many foreign companies.

It also stipulates the following two cases in which a person is considered an administrator.
①Representative of a branch, representative office, or sales office of a company.
②A person who directly operates at least one institution, organization, or company and receives direct instructions and management from their representative. For example, the factory manager, technical manager, etc. may fall under this category.

The above is our opinion, and the practice may vary depending on the region and competent authority official, so we recommend that you check directly with the competent authority for more detailed guidance.

2. Changes in work permit issuance, renewal, exemption application and reporting procedures
-Step 1: Recruit Vietnamese workers for positions where foreign workers are expected to be hired. It will be applied from January 1, 2024.
Implementation deadline: 15 days before the scheduled implementation date of Step 2

-Step 2: Finalize your foreign worker usage plan (those who are eligible for exemption can skip this step).
Implementation deadline: 15 days before the scheduled date of use of foreign workers (old government ordinance: at least 30 days)

-Step 3: Apply for work permit issuance, renewal, exemption application/report.

From September 18, 2023, companies headquartered in industrial parks, export processing zones, and economic zones must apply for the issuance, renewal, or exemption of work permits at the provincial or municipal Department of Labor, Invalids, and Social Affairs.
Documents submitted before the effective date of Decree 70 will be processed in accordance with the previous Decree. If you have already made preparations using application documents from the old ordinance, we recommend that you check with the authorities to see if you can use those application documents.

3. Changes in application documents for issuance, renewal, and exemption of work permits
・Documents certifying the representative and manager are (i) company articles of incorporation, operating regulations, (ii) establishment permit, and (iii) resolution or appointment decision of an institution, organization, or company.
・For experts and engineers, a certificate of overseas work experience or an already issued work permit can be used as proof of work experience.
・A notarized copy or a copy with the company seal can be used as a copy of the foreign worker’s passport.

4. Supplementary provisions for applying for the same position after renewing a work permit
　If a foreign worker who is an expert or engineer renews his or her work permit and continues to work in the same position, an application as a “special case” will be applied. In this case, application documents such as a certificate of no crime and certificates of experts/technical personnel will be exempted.

5. Changes regarding work permit exemption
　For (1) foreign lawyers with business licenses and (2) foreigners residing in Vietnam who are married to Vietnamese nationals, the application procedure for finalizing plans to use foreign workers is no longer necessary.
　In addition, in the case of ② above, previously a work permit exemption report was carried out, but under Cabinet Order 70, a work permit exemption application will be carried out.

6. If you change your company name but do not change your tax code, you will need to reissue your work permit.

7. Changes to the form when applying for a work permit
・Explanation of foreign worker usage plan/change plan (No. 01, 02): Use the form of Decree 70.
・Application for issuance/renewal/exemption of work permit (No. 11): Use the form of Decree 152, and change salary item 20 into “20. Average salary/month: … million VND”.
・Foreign worker usage status report (No.07): Use the form of Decree 70.

The above is an overview and our opinion on the main changes in Decree 70. Since Cabinet Order 70 has just been enforced and the number of cases in practice is still small, it is recommended that you check with the authorities to receive specific guidance when actually carrying out the application procedure.

References:
・Decree 152/2020/ND-CP
・Decree 70/2023/ND-CP

*This article was translated by Yarakuzen.