On 18 September 2023, Vietnam’s Government introduced the Decree No. 70/2023/ND-CP (“Decree 70”) amending the Decree No. 152/2020/ND-CP dated 30 December 2020 (“Decree 152”) concerning foreign employees in Vietnam and the administration of Vietnamese employees employed by foreign entities in Vietnam. Among several updates, highlighted below are two primary groups of changes concerning foreign employees in Vietnam.
1. Notable Regulations Simplifying the Recruitment of Foreign Employees
a. The requirement on the link between educational qualifications and the job roles of foreign employees in Vietnam for obtaining work permits has been abolished. Under Decree 152, foreign experts and skilled employees need to possess education or training directly related to their intended job roles to qualify for Vietnamese work permits. However, Decree 70 eases these prerequisites. In particular, there's no need for their degrees to match their experience or job position. However, it still requires that the foreign employees having at least 3 years of experience corresponding the job positions that they are expecting to work in Vietnam.
b. Decree 70 also expands type of documents proving the educational qualifications and experience of foreign employees. Particularly, aside from foreign-issued experience certificates, previous work permits or exemption certificates can also help to prove a foreign worker’s experience. Also, graduation certificates are now considered as valid evidences of expertise.
c. Concerning the definition of ‘executive director’ who is one of the subject matters of Decree 152, Decree 70 extend the concepts to include (i) individuals leading a branch, representative office, or business location of a company, and (ii) those who oversee and directly manage at least one department within an agency, organization, or company, operating under the direct guidance of that entity’s head.
d. Decree 70 shortens the timeframe for employers to carry out the procedure for determining or changing the demand for using foreign employees. Accordingly, the employers are now required to apply for approval of employing foreign employees “at least 15 days before the anticipated employment date” compared to the previous requirement of at least 30 days in advance.
e. Companies can now certify a foreign worker’s passport copy, making it easier for employees to apply for work permits from abroad, without having to submit their original passport for notarization in Vietnam.
f. Foreign executives working for educational entities backed by foreign diplomatic bodies or international organizations can now get work permit exemptions, similar to foreign teachers at these institutions.
2. Changes in Application Processes and Management of Foreign Labor
a. Starting 01 January 2024, companies must post job vacancies they plan to fill with foreigners on the Ministry of Labor, War Invalids and Social Affairs’ electronic portal or the regional Employment Service Center's portal, 15 days before applying for approval of employing foreign employees. The published contents include job position and title, job description, quantity, qualification and experience requirements, salary, working hours and working location. This requirement applies to all positions that companies intend to fill with foreign labor, irrespective of whether the positions are for individuals transferred within the company or recruited locally; it also add a further administrative burden to businesses using foreign labor and might trigger some concerns if the recruited position is sensitive or confidential.
b. If the foreign employees work in multiple locations, details of each location shall be provided in the application, and if a foreign employee serves multiple locations in various provinces for a single employer, this must be electronically reported within three business days of commencement.
c. Decree 70 excludes foreign employees, who marry Vietnamese citizen and live in Vietnam, from work permit exemption. Consequently, foreign labour married to Vietnamese citizens will now need to submit the application dossier to obtain a work permit exemption certificate, rather than just submitting a written notice to the labor authority as was previously mandated.
d. Under the revised regulations of Decree 70, the Ministry of Labour, War Invalids and Social Affairs (“MOLISA”) and the Department of Labour, War Invalids and Social Affairs (“DOLISA”) will assume the responsibilities previously held by the management boards of industrial parks and economic zones as outlined in Decree 152. This transfer of authority grants MOLISA and DOLISA the power to evaluate employer requirements for foreign labor, endorse exemptions from work permits, as well as manage the issuance, reissuance, renewal, and revocation of work permits.
It should be noted that since Decree 70 has just been recently introduced, varying interpretations from different local labor management authorities may occur until the alignment from central to local levels is comprehensively established.
*Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For legal advice, please contact our Partners.