Vietnam work permit rules for foreign managers

Vietnam work permit rules changed on 1 April 2016, when Decree 11/2016/ND-CP took effect. The decree sets who can get a permit and what the employer must file. A foreign manager needs to know both before the first day of work.

The short version: the employer applies, not the worker. The file must show the person is a manager, executive, expert or technical worker. It must also show a clean record, good health and approval for the job.

What changed on 1 April 2016

The Government issued Decree 11/2016/ND-CP on 3 February 2016. It explains how the Labor Code applies to foreign workers in Vietnam. It replaces the earlier rules in Decree 102/2013/ND-CP.

Accounting firm Ernst and Young told clients in February 2016 that the decree brings big changes. It changes exemptions, timelines, required papers and the definitions of specialists, managers and executives. Employers who followed the old checklist should read the new one.

Sources: Decree No. 11/2016/ND-CP of 3 February 2016 (English text, luatvietnam.vn); Ernst and Young, Vietnam issues new regulations on work permits, 26 February 2016 (taxnews.ey.com).

Who counts as a manager, expert or technician

The decree gives four labels. Each has its own test. A permit is only for people who fit one of them.

A manager is a person who runs an enterprise under the Law on Enterprises. A manager can also be the head or deputy head of an agency or organization. An executive is the head of a unit inside an organization who directly manages that unit.

An expert, called a specialist in the English text, has one of two things. The first is a written certificate of expert status from an agency, organization or enterprise abroad. The second is a university degree or higher plus at least three years of work in the same field as the job in Vietnam.

A technical worker has had at least one year of training in a technical or other field. The worker also has at least three years of work experience in that field.

Source: Decree No. 11/2016/ND-CP, Article 3.

The conditions to get a permit

Article 9 lists five conditions. The worker must have full civil capacity under the law. The worker must be fit for the job. The worker must be a manager, executive, expert or technical worker.

The worker must not have a criminal conviction or be under criminal investigation. This applies under Vietnamese law or foreign law. Last, a state agency must approve in writing that the employer may hire a foreigner for this position.

That approval is a separate step from the permit file. Under Article 4, the chairperson of the provincial People's Committee approves the employer's use of foreign workers for each position. Without that approval, the permit file cannot move ahead.

Source: Decree No. 11/2016/ND-CP, Articles 4 and 9.

The papers a work permit file needs

Article 10 sets the file. The employer submits it. Here are the main items for most managers.

• A written application from the employer, on the Ministry of Labor form.
• A health certificate from a competent foreign or Vietnamese clinic, issued within 12 months before filing.
• A judicial record card, or a written statement that the worker has no conviction and is not under investigation. It must be issued within 6 months before filing. A worker who lives in Vietnam needs a record card from a Vietnamese agency.
• A paper that proves the worker is a manager, executive, expert or technical worker, such as a degree and work letters.
• Two color photos, 4 cm by 6 cm, with a white background, taken within the last 6 months.
• A certified copy of the passport that is still valid.
• Papers that fit the worker's case. For a worker moved within a company, these include the foreign firm's appointment letter and proof of at least 12 months of employment there before the move.

Foreign-language papers must usually be legalized by a consulate, unless a treaty or the law exempts them. They must also be translated into Vietnamese and certified. Plan time for this, because every foreign-language paper needs these extra steps.

Source: Decree No. 11/2016/ND-CP, Article 10, clauses 1 to 7, and clause 9 on legalization.

Timing, validity and exemptions

File at least 15 working days before the worker starts. The provincial Department of Labor, War Invalids and Social Affairs where the worker will work receives the file. It must grant the permit within 7 working days of a complete file. If it says no, it must give the reason in writing.

A permit lasts up to two years. Its term matches the labor contract, the foreign partner's assignment period or the contract between the Vietnamese and foreign parties. After the permit is granted, the employer and a worker hired under a labor contract must sign that contract before the work begins.

Some foreigners do not need a permit. Article 7 lists cases, including certain company transferees in the 11 service sectors in Vietnam's WTO commitments. The employer must still ask the provincial labor department to confirm the exemption, at least 7 working days before the worker starts.

Source: Decree No. 11/2016/ND-CP, Articles 7, 8, 11 and 12.

A simple checklist for employers

First, confirm the person fits one of the four labels. Second, get the written approval for the position from the provincial People's Committee. Third, collect the papers early, especially the record card and any legalized copies. Fourth, file 15 working days ahead.

These notes are a general summary. They are not legal advice. Check the full decree text or ask the local labor department about your case.

Sources: Decree No. 11/2016/ND-CP of 3 February 2016, English text at english.luatvietnam.vn; Ernst and Young tax news, 26 February 2016.