Amendments To Decree No.70/2023/ND-CP Regarding The Acquisition Of Work Permits For Foreign Workers

2023/12/13

• Ho Thi Y NhiI

Introduction

For many Vietnamese companies, especially foreign-funded companies, hiring foreign workers is essential. Details regarding the employment of foreign workers are stipulated in Decree No.152/2020/ND-CP (hereinafter called as “Decree 152”). However, on September 18, 2023, the government issued Decree 70, amending and supplementing some of the provisions of Decree 152. This article explains the important points of amendment in Decree 70. We hope this article will help companies comply with the law when hiring foreign workers in Vietnam.

1. Relaxation of conditions for obtaining work permits for experts and engineers(*1)

Under the previous Decree 152, foreign workers working as experts and engineers were required to have work experience that was “appropriate” for their education and training. Although many foreign workers have sufficient or many years of experience for the position they are being hired for, in many cases they were unable to obtain a work permit because they had not graduated from an undergraduate degree in a related field. Therefore, this provision had caused many inconveniences in practice.

To solve this problem, Decree 70 no longer requires foreign workers to have work experience in specialized fields of education, and eases the conditions for obtaining work permits for experts and engineers. Specifically, the details are as follows.

・In the case of foreign workers working as experts, they can obtain a work permit without any problems if they meet the following two conditions.

(i) Acquire a college graduate or equivalent degree

(ii) Have at least three years of work experience related to the position you will be working in Vietnam

・In the case of foreign workers working as engineers, they can obtain a work permit without any problems if they meet the following two conditions.

(i) Have at least one year of training related to the position you intend to work in Vietnam

(ii) Have at least three years of work experience related to the position you will be working in Vietnam

In this way, it is no longer necessary to match the university’s major with the job description in Vietnam, and emphasis is now placed on work experience that is compatible with the position one is planning to work in Vietnam. The amendment to Decree 70 will give companies the opportunity to interview more foreign workers. This will make it possible to select from a larger number of foreign workers with appropriate qualifications and work experience, and is expected to increase the possibility of hiring the most suitable foreign worker.

2. Change of executive title definition

Under the previous Decree 152, an executive was defined as a department head or manager of an institution, organization, or enterprise. However, this definition was abstract and does not mention specific positions, making it difficult to determine whether a foreign worker scheduled to work is an executive.

To resolve this issue, Decree 70 provides a broader and clearer definition of executive as follows:

(i) Being the head of a branch, representative office, or sales office of a company

(ii) Being a top person who directly directs at least one field of an institution, organization, or company, and a person who directly receives instructions and direction from the top of the institution, organization, or company(*2).

The above amendments have made the definition of an executive more specific and clear, making it easier to determine whether a person is an executive or not. For example, workers who are in charge of jobs such as “Sales Manager,” “General Affairs and Human Resources Department Manager,” and “Factory Manager” match the second definition of “executive”, therefore, they are taken as executives.

3. Addition of procedures regarding employment notification of Vietnamese workers

According to Decree 152, before proceeding to obtain a work permit for a foreign worker, no documents explaining the reason for not hiring a Vietnamese worker for the position for which a foreign worker is scheduled to be employed were required. preparation was required. However, based on the principle of prioritizing the employment of Vietnamese workers, employment of foreign workers will only be allowed if Vietnamese workers cannot meet the employment needs.

Therefore, Decree 70 stipulates that it is necessary to tighten procedures for hiring foreign workers in Vietnam and to implement job notifications for Vietnamese workers. Specifically, from January 1, 2024, companies will be required to take steps to notify Vietnamese workers for the positions they plan to hire, through the website of the Employment Department of the Ministry of Labor, Invalids and Social Affairs or through the portal of the local employment service center(*3). If the company is subsequently unable to hire a Vietnamese who meets the requirements, it will be required to explain the need to hire foreign workers when applying for a work permit.

It should be noted that the amendment of Decree 70 applies to all positions held by foreign workers, including those who are transferred and locally hired. Particularly sensitive and confidential positions may cause more or less concern for companies. Additionally, it is expected that this will affect the schedule for obtaining a work permit, as it takes time to recruit Vietnamese workers before hiring foreign workers.

4. New regulations for foreign workers working in multiple locations(*4)

In practice, it is not uncommon for foreign workers to work in multiple locations within Vietnam with the same position (for example, in cases where they work as market development experts at both a local corporation and a branch or representative office). The previous Decree 152 stipulated that it was necessary to apply for a work permit corresponding to each work location. Therefore, foreign workers working in multiple locations were required to have multiple work permits. This system had been seen as one of the issues, as it would take time to apply for multiple work permits, which would hinder business operations in Vietnam.

Decree 70 adds several provisions regarding work permit applications for foreign workers working in multiple locations. The details are as follows.

(i) If a foreign worker works in multiple workplaces in the same province or city, apply for a work permit from the labor bureau of that province or city

(ii) If the foreign worker works in multiple locations in different provinces or cities, apply for a work permit from the Ministry of Labor

However, based on Decree 70, companies need to keep the following points in mind.

(i) Include all work location information on the work permit application;

(ii) Within three business days from the foreign worker’s first day on the job, the company must notify information on foreign workers to the Ministry of Labor by electronic means (email, entry on website, etc.) in accordance with Decree 70 Form No.17/PLI. At present, no official guidance regarding specific electromagnetic method regulations or procedures for applying for a work permit to the Ministry of Labor has been published. Therefore, companies should pay attention to whether information has been updated and, if necessary, check directly with the competent authorities.

(iii) Regardless of whether the multiple workplaces are in the same province or city or different provinces or cities, if the foreign worker’s position differs depending on the workplace, a work permit must be submitted to the labor bureau of each workplace for each position.

As mentioned above, if you have the same position and work in multiple locations, you must apply for a work permit to the Labor Department if the multiple locations are in the same province or city, or to the Ministry of Labor if they are in different provinces or cities. Therefore, the worker only needs to obtain one work permit.

5. Changes in regulations regarding obtaining work permits

(1) Please note that Decree 70 newly stipulates that the following three documents must be prepared when obtaining a work permit for a managerial or executive position(*5).

(i) Articles of incorporation or operating regulations of the organization/company

(ii) An Enterprise Registration Certificate (ERC) or Incorporation License or other documents of equivalent legal value.

(iii) Documents indicating resolutions of organizations/companies or decisions on appointments (appointment letters, etc.)

(2) Under the previous Decree 152, only a “Certificate of Work Experience” approved by a foreign company was accepted as a document proving the work experience of experts and engineers. However, in practice, if the employee has already left the company, it is difficult to apply for a “Certificate of Work Experience” from the company. Additionally, foreign workers and companies were spending a lot of time preparing as they needed notarization procedures, translation into Vietnamese, and certification procedures.

With the amendment to Decree 70, in addition to the work experience certificate, past work permits are now valid documents to prove work experience(*6). Therefore, workers who have worked in Vietnam in the past will be given an advantage in the application process.

(3) Regarding identity verification documents (passports) of foreign workers, the previous Decree 152 requires submission of a copy of the passport notarized in Vietnam or a translation or notarization of the copy of the passport certified at the consulate. However, with the amendment to Decree 70, it is now possible to use a certified copy of the passport of the company to which you will be working in the process of issuing, reissuing, or renewing a work permit. The authentication method is as follows.

(i) Create a confirmation letter (signature of company president and company seal required)

(ii) Attach a copy of all pages of the passport to the above confirmation and stamp all pages.

Conclusion

Decree 70 is a regulation issued to resolve obstacles in the procedure for obtaining work permits for foreign workers working in Vietnam. Companies must fully understand the contents of these regulations and comply with them when applying for work permits for foreign workers. However, for some regulations, specific guidance has not been published by the competent authorities, so it is essential to check the actual situation in each region. Also, if necessary, companies should check with the competent authorities before preparing documents and completing procedures.

References
*1 Decree No. 70/2023/ND-CP No. 1, Paragraph 1 a), c)
*2 Decree No. 70/2023/ND-CP No. 1, Paragraph 1 b)
*3 Decree No. 70/2023/ND-CP No. 1, Paragraph 2
*4 Decree No. 70/2023/ND-CP Article 1, Paragraph 3
*5 Decree No. 70/2023/ND-CP Article 1, Paragraph 5 b)
*6 Decree No. 70/2023/ND-CP Article 1, Paragraph 5 b)
*7 Decree No. 70/2023/ND-CP No. 1, Paragraph 13 g)

*This article was translated by Yarakuzen.

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