Circular No. 31/2011/TT-BLDTBXH dated November 3, 2011 of the Ministry of Labor, War Invalids and Social Affairs guiding the implementation of a number of articles of Decree No.34/2008/ND-CP dated March 25, 2008 of the Government and Decree No.46/2011/ND-CP dated June 17, 2011 of the Government amending, supplementing a number of articles of Decree No.34/2008/ND-CP dated March 25, 2008 of the Government defining recruitment and management of foreigners working in Vietnam

THE MINISTRY OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS

Circular No. 31/2011/TT-BLDTBXH of November 3, 2011, guiding a number of articles of the Government’s Decree No. 34/2008/ND-CP of March 25, 2008, on recruitment and management of foreign employees in Vietnam and Decree No. 46/2011/ND-CP of June 17, 2011, amending and supplementing a number of articles of the Government’s Decree No. 34/2008/ND-CP of March 25, 2008

Pursuant to the Government’s Decree No. 186/2007/ND-CP of December 25, 2007, defining the functions, tasks, powers and organizational structure of the Ministry of Labor, War Invalids and Social Affairs;

Pursuant to the Government’s Decree No. 34/2008/ND-CP of March 25, 2008, on recruitment and management of foreign employees in Vietnam;

Pursuant to the Government’s Decree No. 46/2011/ND-CP of June 17, 2011, amending and supplementing a number of articles of the Government’s Decree No. 34/2008/ND-CP of March 25, 2008, on recruitment and management of foreign employees in Vietnam;

The Ministry of Labor, War Invalids and Social Affairs guides a number of articles of the Government’s Decree No. 34/2008/ND-CP of March 25, 2008, on recruitment and management of foreign employees in Vietnam, and Decree No. 46/2011/ND-CP of June 17, 2011, amending and supplementing a number of articles of the Government’s Decree No. 34/2008/ND-CP of March 25, 2008, on recruitment and management of foreign employees in Vietnam (below referred to as revised Decree No. 34/2008/ND-CP) as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

The scope of regulation and subjects of application of this Circular are the ones provided in Article 1 of revised Decree No. 34/2008/ND-CP, and foreign investors and contractors. The subjects of application mentioned at Points a and k, Clause 2, Article 1 of revised Decree No. 34/2008/ND-CP are guided as follows:

1. Enterprises operating under the Law on Enterprises and the Investment Law mentioned at Point a, Clause 2, Article 1 of revised Decree No. 34/2008/ND-CP, including:

a/ State companies that operated under the 2003 Law on State Enterprises and are currently operating under Article 166 of the November 29, 2005 Law on Enterprises;

b/ Limited liability companies, joint-stock companies, private enterprises and partnerships, which were established under the 1999 Law on Enterprises and are currently operating under Clause 1, Article 170 of the November 29, 2005 Law on Enterprises;

c/ Foreign-invested enterprises that have obtained investment licenses under the Law on Foreign Investment in Vietnam, including:

- Joint-venture enterprises;

- Wholly foreign-owned enterprises;

- Foreign-invested joint-stock companies established under the Government’s Decree No. 38/2003/ND-CP of April 15, 2003, on transformation of a number of foreign-invested enterprises into joint-stock companies;

- Investment projects under business cooperation contracts that have obtained investment licenses under the Law on Foreign Investment in Vietnam.

2. Business societies and associations established under Vietnamese law mentioned at Point k, Clause 2, Article 1 of revised Decree No. 34/2008/ND-CP, including:

a/ Business associations established and operating under the Government’s Decree No. 45/2010/ND-CP of April 21, 2010, on organization, operation and management of associations;

b/ Foreign business associations established and operating under the Government’s Decree No. 08/1998/ND-CP of January 22, 1998, promulgating the Regulation on establishment of foreign business associations in Vietnam.

Chapter II

RECRUITMENT AND MANAGEMENT OF FOREIGN EMPLOYEES IN VIETNAM

Article 2. Recruitment of foreigners working in Vietnam under labor contracts

1. A foreigner’s written registration for recruitment under Point a, Clause 2, Article 4 of revised Decree No. 34/2008/ND-CP shall be made according to form No. 1 attached to this Circular.

2. The certificate of a foreigner’s advanced professional or technical expertise under Point d, Clause 2, Article 4 of revised Decree No. 34/2008/ND-CP is the document proving the foreigner’s advanced professional or technical expertise, which is a university or postgraduate diploma or certificate relevant to the post to be held by that foreigner.

For a number of specific occupations and jobs, certification of foreigners’ professional or technical expertise complies with Point d, Clause 2, Article 4 of revised Decree No. 34/2008/ND-CP.

3. An employer’s announcement of recruitment of Vietnamese employees to the posts planned for foreigners under Point a, Clause 4, Article 4 of revised Decree No. 34/2008/ND-CP is guided as follows:

a/ At least 30 (thirty) days before recruiting foreigners, an employer shall announce its recruitment of Vietnamese employees to the posts planned for foreigners on at least 1 (one) issue of a central press and 1 (one) issue of a local press of print, radio, television or electronic form with the following details: number of expected employees, posts, required professional qualifications, salary levels and other incomes, working conditions and other requirements of the employer, if any.

An employer that cannot recruit Vietnamese employees after announcing its recruitment of Vietnamese employees on at least 2 (two) issues of a central press and 2 (two) issues of a local press under regulations may, 36 months after its last announcement, recruit foreign employees without having to announce such recruitment on a central and a local press;

b/ A work permit application dossier for a foreign employee working under a labor contract under Article 4 of revised Decree No. 34/2008/ND-CP or for a foreigner having obtained a work permit under Point b, Clause 3, Article 9 of revised Decree No. 34/2008/ND-CP must contain a document proving the employer’s announcement of its recruitment of Vietnamese employees to the posts planned for foreigners under Point a, Clause 3 of this Article.

4. The papers specified at Points b, c and d, Clause 2, Article 4 of revised Decree No. 34/2008/ND-CP are guided as follows:

The papers specified at Points b, c and d, Clause 2, Article 4 of revised Decree No. 34/2008/ND-CP which are in a foreign language must be translated into Vietnamese and notarized or certified. The consular legalization of foreign papers complies with Vietnamese law.

5. Conclusion of a labor contract under Point d, Clause 4, Article 4 of revised Decree No. 34/2008/ND-CP is guided as follows:

After a foreign employee obtains a work permit, this person and his/her employer shall conclude a written labor contract under Vietnamese labor law before the date the employee is expected to work for the employer. Within 5 (five) working days after concluding a labor contract, the employer shall send a copy of that contract and a photocopy of the employee’s work permit to the agency granting such permit. Provisions of the labor contract must not be contrary to the content of the work permit.

Article 3. Foreigners entering Vietnam to implement bid packages or projects won by foreign contractors in Vietnam

1. The employment plan included in the investor’s bidding dossier or dossier of requirement under Clause 1, Article 6a of revised Decree No. 34/2008/ND-CP shall be made according to form No. 2 attached to this Circular.

2. A foreign contractor’s reporting and written request to the provincial-level People’s Committee chairperson under Clause 3, Article 6a of revised Decree No. 34/2008/ND-CP are guided as follows:

At least 30 (thirty) days before implementing a won bid package or project, a foreign contractor shall report and make a written request according to form No. 3 attached to this Circular for its recruitment of Vietnamese employees to the chairperson of the provincial-level People’s Committee of the locality in which it will implement the bid package or project. This request must be enclosed with the investor’s written certification of the employment plan listed in the bid dossier or dossier of proposal.

A foreign contractor wishing to change the number of expected employees indicated in its bid dossier or dossier of proposal shall make a report on such change according to form No. 4 attached to this Circular with the investor’s written certification and send it to the provincial-level Labor, War Invalids and Social Affairs Department of the locality in which the foreign contractor implements the won bid package or project.

3. The introduction and supply of Vietnamese employees at a foreign contractor’s request under Clause 4, Article 6a of revised Decree No. 34/2008/ND-CP are guided as follows:

Within 60 (sixty) days or 30 (thirty) days after receiving a written request for recruitment of 500 (five hundred) Vietnamese employees or more, or less than 500 Vietnamese employees respectively, the chairperson of a provincial-level People’s Committee who cannot introduce or supply Vietnamese employees to a foreign contractor at the latter’s request shall consider and allow that contractor to recruit foreigners to the vacant posts, regarding posts, number of jobs, required professional qualifications and experience and employment duration.

4. A foreign contractor that is implementing a project or bid package won before the effective date (August 1, 2011) of the Government’s Decree No. 46/2011/ND-CP of June 17, 2011, shall, within 30 (thirty) days after the effective date of this Circular, report on Vietnamese and foreign employees currently working for the bid package or project, specifying the number of employees, their citizenship, qualifications, posts, the numbers of employees having obtained, exempt from, and not having obtained a work permit, stating the reason and remedies; and its plan on employment of Vietnamese and foreign employees till completion of the project or bid package, to the chairperson of the provincial-level People’s Committee of the locality in which the bid package or project is implemented, specifying the need for recruitment of Vietnamese employees to replace currently working foreigners and posts planned for foreigners. If unable to introduce or supply Vietnamese employees for the foreign contractor, the provincial-level People’s Committee chairperson shall consider and allow the foreign contractor to recruit foreigners to the vacant posts.

Article 4. Foreigners entering Vietnam to work as service salespersons

Foreigners entering Vietnam to work as service salespersons under Article 7 of revised Decree No. 34/2008/ND-CP are guided as follows:

At least 07 (seven) working days before a foreigner enters Vietnam to work as a service salesperson, a written notice must be sent directly, by post or via fax to the provincial-level Labor, War Invalids and Social Affairs Department of the locality in which the foreigner will sell services. Such notice shall be made according to form No. 5 attached to this Circular, specifying the full name, age, citizenship, passport number, dates of starting and finishing work and specific jobs of the foreigner.

Article 5. Foreign employees in Vietnam exempt from work permits

1. The period of less than 3 (three) months mentioned at Point a, Clause 1, Article 9 of revised Decree No. 34/2008/ND-CP is guided as follows:

The period of less than 03 (three) months is an uninterrupted period of time counting from the date a foreigner enters Vietnam to work for an employer, a Vietnamese party or the representative of a foreign non-governmental organization to the date of the third month preceding that date.

A foreigner entering Vietnam to work for less than 3 (three) months must comply with Points a and b, Clause 4, Article 4 of revised Decree No. 34/2008/ND-CP.

2. A foreigner working as the chief of a representative or project office or a foreigner authorized by a foreign non-governmental organization to represent that organization’s activities in Vietnam under Point h, Clause 1, Article 9 of revised Decree No. 34/2008/ND-CP is the one named in the license for the representative or project office or the foreign non-governmental organization to be established and operate under Vietnamese law.

3. Foreigners mentioned at Points b, c and d, Clause 1, Article 9 of revised Decree No. 34/2008/ND-CP are not required to obtain a work permit when working at those enterprises or organizations. If these foreigners work for other enterprises or organizations in Vietnam for full 3 months or more, they shall apply for a work permit.

Article 6. Work permit form

1. The work permit under Clause 2, Article 9 of revised Decree No. 34/2008/ND-CP is guided as follows:

a/ Format of the work permit:

The work permit is of A4 size (21cm x 29.7cm), consisting of 4 pages: Pages 1 and 4 have a blue background and are plastic-laminated; pages 2 and 3 have a white background with light-blue patterns and a star in the middle;

b/ The content of the work permit complies with form No. 6 attached to this Circular.

2. Work permits shall be printed and distributed solely by the Employment Authority of the Ministry of Labor, War Invalids and Social Affairs.

Article 7. Grant of work permits

1. The written request for a work permit made by an employer, a Vietnamese party or the representative of a foreign non-governmental organization included in an application dossier under Point a, Clause 3, Article 9 of revised Decree No. 34/2008/ND-CP complies with form No. 7 attached to this Circular.

2. The judicial record card and health certificate under Points b and c, Clause 2, Article 4 of revised Decree No. 34/2008/ND-CP shall be granted by competent agencies within 180 (one hundred and eighty) days after a work permit application dossier is submitted.

3. The locality in which a foreigner works regularly under Point a, Clause 5, Article 9 of revised Decree No. 34/2008/ND-CP is a province or centrally run city in which the foreigner works on a full time basis for an employer, a Vietnamese party or the representative of a foreign non-governmental organization.

4. A foreigner with an invalid or invalidated work permit under Point b, Clause 3, Article 9 of revised Decree No. 34/2008/ND-CP who wishes to work for another enterprise in the same post indicated in his/her work permit shall, within 30 (thirty) days after his/her work permit becomes invalid or invalidated, produce the papers specified at Points c and e, Clause 2, Article 4 of revised Decree No. 34/2008/ND-CP and the granted work permit or its copy.

Article 8. Extension of work permits

1. A dossier of request for an extended permit for a foreigner working under a labor contract according to Point a, Clause 2, Article 10 of revised Decree No. 34/2008/ND-CP comprises:

a/ The employer’s written request for an extended work permit, made according to form No. 8 attached to this Circular;

b/ A copy of the apprenticeship contract signed by the employer and the Vietnamese employee who will work in the post currently held by the foreigner, or a document proving the completion of a program or plan to train Vietnamese employees in replacement of currently working foreigners. Such program or plan must specify the number of trainees for each post, time and form of training, place and organization of training and training results;

c/ A copy of the labor contract;

d/ The granted work permit.

2. A dossier of request for an extended work permit for a foreigner transferring within an enterprise comprises:

a/ A written request for an extended work permit made according to form No. 8 attached to this Circular by the representative of a foreign enterprise having set up its commercial presence in the Vietnamese territory;

b/ The document proving continued employment of the foreigner transferring within the enterprise;

c/ The granted work permit.

3. The dossier of request for an extended work permit for a foreigner under Point b, Clause 2, Article 10 of revised Decree No. 34/2008/ND-CP comprises:

a/ A written request for an extended work permit made by the Vietnamese party according to form No. 8 attached to this Circular;

b/ A copy of the contract signed between the Vietnamese and foreign parties;

c/ The granted work permit.

Article 9. Re-grant of work permits

The written request for a re-granted work permit for a foreigner under Point a, Clause 2, Article 11 of revised Decree No. 34/2008/ND-CP complies with form No. 9 attached to this Circular.

Article 10. Use of work permits

1. The use of a work permit under Clause 1, Article 13 of revised Decree No. 34/2008/ND-CP is guided as follows:

A foreigner shall keep his/her valid work permit. Within 2 (two) days after such permit becomes invalid or invalidated, he/she shall return that permit to the employer, Vietnamese party or representative of the foreign non-governmental organization.

2. The written notice of a foreigner’s working visit under Clause 3, Article 13 of revised Decree No. 34/2008/ND-CP is guided as follows:

When a foreigner works in a province or centrally run city (other than the locality he/she regularly works) for 10 (ten) consecutive days or for a total of 30 (thirty) days in 1 (one) year, the employer, Vietnamese party or representative of the foreign non-governmental organization shall send a written notice of the foreigner’s working visit together with a photocopy of his/her work permit to the provincial-level Labor, War Invalids and Social Affairs Department of the locality in which the foreigner will work. This notice shall be made according to form No. 10 attached to this Circular, specifying the full name, age, citizenship, dates of starting and completing work, post and place of work of the foreigner.

Article 11. Foreigners being spouses of members of foreign diplomatic missions and consulates and representatives of intergovernmental international organizations; pupils and students on apprenticeship at enterprises, agencies and organizations in Vietnam

1. A foreigner being the spouse of a person entitled to diplomatic immunities or consular who works for an enterprise or organization in Vietnam under Clause 1, Article 20 of revised Decree No. 34/2008/ND-CP is guided as follows:

a/ In case the agreement between Vietnam and a concerned country does not provide the exemption from a work permit for the spouse of a member of a foreign diplomatic mission or consulate or representative of an intergovernmental international organization to work in Vietnam, the recruitment registration dossier of this person must contain the papers specified at Points c, d and e, Clause 2, Article 4 of revised Decree No. 34/2008/ND-CP, enclosed with a photocopy of the Ministry of Foreign Affairs’s (the State Protocol Department) written reply to the foreign diplomatic mission or consulate or representative of the intergovernmental international organization on permission for the foreigner to work in Vietnam under the concerned international agreement, together with the original for comparison;

b/ The validity duration of the granted work permit must not exceed the duration of residence of the foreigner’s spouse and 36 (thirty-six) months;

c/ The order of granting a work permit complies with Clause 5, Article 9 of revised Decree No. 34/2008/ND-CP;

d/ For a foreigner having obtained a work permit who is no longer entitled to work under the agreement between Vietnam and the concerned country, the Ministry of Foreign Affairs (the State Protocol Department) shall send a notice thereof to the provincial-level Labor, War Invalids and Social Affairs Department which has granted such permit for withdrawal of the permit.

2. Foreign pupils and students of overseas schools and training institutions who come to Vietnam for apprenticeship under Clause 1, Article 20 of revised Decree No. 34/2008/ND-CP are guided as follows:

An enterprise, agency or organization in Vietnam at which a foreign pupil or student of an overseas school or training institution works as a trainee shall, 7 (seven) working days before that pupil’s or student’s apprenticeship, report on such person according to form No. 11 attached to this Circular.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 12. Responsibilities of provincial-level People’s Committees

1. To direct local functional agencies in disseminating and popularizing; and examining, inspecting and handling violations of, regulations on recruitment and management of foreign employees in their localities.

2. To direct provincial-level Labor, War Invalids and Social Affairs Departments and related agencies and organizations in introducing and supplying Vietnamese employees for foreign contractors under Clause 4, Article 6a of revised Decree No. 34/2008/ND-CP.

3. To consider and allow foreign contractors to recruit foreigners to the posts for which Vietnamese employees cannot be recruited under Clause 4, Article 6a of revised Decree No. 34/2008/ND-CP.

Article 13. Responsibilities of provincial-level Labor, War Invalids and Social Affairs Departments

1. To disseminate and popularize Vietnamese labor law to enterprises, organizations, investors, contractors and employees in their localities.

2. To receive dossiers and grant, extend and re-grant work permits for foreigners under law. When receiving dossiers of request for new, extended and re-granted work permits, to record them in monitoring books and issue dossier receipts to employers, Vietnamese parties or representatives of foreign non-governmental organizations. Such a receipt must clearly indicate the date of receipt, documents included in the dossier and the deadline for replying the applicant. To preserve dossiers of request for new, extended and re-granted work permits.

3. To organize the introduction and supply of employees for foreign contractors as directed by provincial-level People’s Committee chairpersons.

4. To guide, examine and inspect the implementation of the law on recruitment and management of foreign employees in Vietnam by enterprises, agencies, organizations and projects or bid packages won by foreign contractors in their localities; and cases of invalid or invalidated work permits.

5. Before the 5th every month, to send a list of foreigners having obtained new, extended and re-granted work permits to local immigration management agencies according to form No. 12 attached to this Circular.

Article 14. Responsibilities of employers, Vietnamese parties and foreign non-governmental organizations

1. To comply with the labor law and other related laws of Vietnam.

2. Recruitment of foreigners through job placement organizations shall be conducted through job placement centers of provincial-level Labor, War Invalids and Social Affairs Departments under recruitment contracts made according to form No. 13 attached to this Circular.

3. To carry out procedures to apply for new, extended and re-granted work permits for foreign employees in Vietnam.

4. To fully perform labor contracts signed with foreign employees in Vietnam under law; to send copies of these contracts to agencies granting work permits for those employees.

5. To manage recruitment registration dossiers of foreign employees in Vietnam and regularly supplement papers related to foreign employees during their working in Vietnam.

6. To manage foreign employees of enterprises and organizations.

7. Within 15 (fifteen) days, employers or Vietnamese parties or representatives of foreign non-governmental organizations shall send written notices of cases of invalid or invalidated work permits under Article 12 of revised Decree No. 34/2008/ND-CP, together with these work permits to provincial-level Labor, War Invalids and Social Affairs Departments having granted the permits. If failing to send work permits, they shall clearly state the reason.

8. To send lists of foreign employees in Vietnam exempt from work permits under Clause 1, Article 9 of revised Decree No. 34/2008/ND-CP, made according to form No. 11 attached to this Circular, together with the foreigners’ papers specified in Clause 6, Article 9 of revised Decree No. 34/2008/ND-CP, to provincial-level Labor, War Invalids and Social Affairs Departments of the localities in which the foreign employees’ head offices are based or in which they regularly work.

9. To pay fees for new, extended and re-granted work permits under the law on charges and fees.

10. Before December 15 every year, employers shall register with provincial-level Labor, War Invalids and Social Affairs Departments their needs for recruitment and employment of foreigners in the following year under Clause 7, Article 19 of revised Decree No. 34/2008/ND-CP, specifying the number of employees, required professional qualifications and experience, salary level and work duration (starting and finishing dates) for each post according to form No. 14 attached to this Circular. When changing their needs for foreign employees, employers shall additionally register their needs for recruitment and employment of foreigners according to form No. 15 attached to this Circular within 30 (thirty) days after they notify their needs for recruitment of foreigners to provincial-level Labor, War Invalids and Social Affairs Departments.

Article 15. Responsibilities of foreign employees

1. To fully study Vietnamese legal documents provided by employers, Vietnamese parties or representatives of foreign non-governmental organizations and concurrently prepare necessary papers and strictly comply with the law on recruitment and management of foreign employees; to fully observe Vietnamese law.

2. To submit recruitment registration dossiers and prepare required papers of dossiers of request for new, extended or re-granted work permits under regulations. After obtaining a work permit, foreign employees and employers shall conclude written labor contracts under Vietnamese labor law.

Article 16. Regular reporting

1. Before the 5th of the first month of a quarter, investors shall send to provincial-level Labor, War Invalids and Social Affairs Departments regular reports on recruitment and management of foreign employees of foreign contractors in the preceding quarter under Clause 6, Article 6a of revised Decree No. 34/2008/ND-CP, made according to form No. 16 attached to this Circular.

2. Before January 15 every year, provincial-level Labor, War Invalids and Social Affairs Departments shall send to the Ministry of Labor, War Invalids and Social Affairs (the Employment Authority) regular reports on registration of needs for recruitment and employment of foreign employees of employers, Vietnamese parties and foreign non-governmental organizations in their localities, made according to form No. 17 attached to this Circular, and before July 15 and January 15 every year, send to the Ministry of Labor, War Invalids and Social Affairs (the Employment Authority) biannual reports and annual reports respectively on foreign employees of enterprises, organizations and foreign contractors in their localities, made according to form No. 18 attached to this Circular.

3. Before July 5 and January 5 every year, employers, Vietnamese parties and foreign non-governmental organizations shall send to provincial-level Labor, War Invalids and Social Affairs Departments of the localities in which they are based or regularly operate biannual and annual reports respectively on their employment of foreigners, made according to form No. 19 attached to this Circular, and make irregular reports on their employment of foreigners when so requested by labor state management agencies.

Article 17. Effect

1. This Circular takes effect on December 18, 2011.

2. This Circular replaces the Labor, War Invalids and Social Affairs Ministry’s Circular No. 08/2008/TT-BLDTBXH of June 10, 2008, guiding a number of articles of the Government’s Decree No. 34/2008/ND-CP of March 25, 2008, on recruitment and management of foreign employees in Vietnam.

Any problems arising in the course of implementation should be reported to the Ministry of Labor, War Invalids and Social Affairs for timely guidance and supplementation.-

For the Minister of Labor, War Invalids and Social Affairs
Deputy Minister
NGUYEN THANH HOA

Notes: All the forms mentioned in this Circular are not printed herein.