Circular No. 40/2016/TT-BLDTBXH dated October 25, 2016 of the Ministry of Labor, War Invalids and Social Affairs guiding the implementation of a number of articles of Decree No. 11/2016/ND-CP detailing a number of articles of the Labor Code in respect of foreign workers in Vietnam

CIRCULAR

Guiding the implementation of a number of articles of the Government’s Decree No. 11/2016/ND-CP of February 3, 2016, detailing a number of articles of the Labor Code regarding foreign workers in Vietnam[1]

Pursuant to the Government’s Decree No. 106/2012/ND-CP of December 20, 2012, 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. 11/2016/ND-CP of February 3, 2016, detailing a number of articles of the Labor Code regarding foreign workers in Vietnam;

At the proposal of the Director of the Department of Employment;

The Minister of Labor, War Invalids and Social Affairs promulgates the Circular guiding the implementation of a number of articles of the Government’s Decree No. 11/2016/ND-CP of February 3, 2016, detailing a number of articles of the Labor Code regarding foreign workers in Vietnam (below referred to as Decree No. 11/2016/ND-CP).

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. This Circular guides the implementation of a number of articles of Decree No. 11/2016/ND-CP regarding the grant of work permits for foreign workers in Vietnam.

2. The subjects of application of this Circular are those provided in Article 2 of Decree No. 11/2016/ND-CP and related agencies, organizations and individuals.

Article 2. Contractual service providers, foreign workers offering services and employers in special cases

1. Contractual service provider specified at Point d, Clause 1, Article 2 of Decree No. 11/2016/ND-CP means a foreign worker who has worked for at least 2 years (24 months) in a foreign enterprise without commercial presence in Vietnam and must satisfy the conditions on specialists specified in Clause 3, Article 3 of Decree No. 11/2016/ND-CP.

2. Foreign worker offering services specified at Point dd, Clause 1, Article 2 of Decree No. 11/2016/ND-CP means the one who neither lives in Vietnam nor receives remunerations from any source in Vietnam, and participates in activities related to the representation for a service provider in order to negotiate the sale of services of this provider, provided that he/she neither sells services directly to the public nor personally participates in the provision of services.

3. Employer in special cases:

a/ For a foreign worker specified at Point c or d, Clause 1, Article 2 of Decree No. 11/2016/ND-CP, his/her employer is the Vietnamese partner with whom which he/she works to perform contracts;

b/ For a foreign worker specified at Point dd or h, Clause 1, Article 2 of Decree No. 11/2016/ND-CP, his/her employer is the foreign worker entering Vietnam to offer services or the person taking charge of establishing commercial presence.

Article 3. Agencies granting work permits

1. The Ministry of Labor, War Invalids and Social Affairs shall approve the demands for foreign workers; certify cases where foreign workers are exempt from work permits; grant and re-grant work permits; revoke, and certify the revocation of, work permits; request the public security agency to expel foreign workers without work permits for employers in Vietnam, including:

a/ Central state agencies; central agencies of political organizations, socio-political organizations, socio-politico-professional organizations, social organizations, and socio-professional organizations;

b/ Foreign non-governmental organizations and international organizations in Vietnam;

c/ Non-business organizations specified at Points a, b and c, Clause 1, Article 2 of the Government’s Decree No. 55/2012/ND-CP of June 28, 2012, providing the establishment, reorganization and dissolution of public non-business units, including public non-business units under ministries, ministerial-level agencies and government-attached agencies; organizations established by the Government or the Prime Minister other than public non-business units; and the Vietnam National University - Hanoi and the Vietnam National University - Ho Chi Minh City;

d/ Vietnam-based offices of foreign projects or international organizations;

dd/ Lawfully established business societies and associations.

2. Provincial-level Departments of Labor, War Invalids and Social Affairs shall certify cases where foreign workers are exempt from work permits; grant and re-grant work permits; revoke, and certify the revocation of, work permits; and request the public security agency to expel foreign workers without work permits for employers in Vietnam, including:

a/ Employers specified at Points a, b, c, h, i, k and m, Clause 2, Article 2 of Decree No. 11/2016/ND-CP;

b/ Local state agencies;

c/ Local political organizations, socio-political organizations, socio-politico-professional organizations, social organizations, and socio-professional organizations;

d/ Non-business organizations specified at Points d, dd and e, Clause 1, Article 2 of the Government’s Decree No. 55/2012/ND-CP of June 28, 2012, providing the establishment, reorganization and dissolution of public non-business units, including public non-business units under provincial-level People’s Committees; specialized agencies under provincial-level People’s Committees; and People’s Committees of rural districts, urban districts, towns and provincial cities.

Article 4. Employment of foreign workers

1. At least 30 days before the date scheduled for employing foreign workers, an employer (except contractors) shall make an explanatory report on his/her/its demand for foreign workers according to form No. 1 enclosed with this Circular to the Ministry of Labor, War Invalids and Social Affairs or the provincial-level People’s Committee chairperson (below referred to as approving agency).

In case his/her/its demand for foreign workers changes, the employer shall submit an adjusted explanatory report, made according to form No. 2 enclosed with this Circular, to the approving agency at least 30 days before the date scheduled for employing foreign workers.

2. Within 15 days after receiving an employer’s explanatory report or adjusted explanatory report, the approving agency shall send to the employer a notice of the approval of employment of foreign workers, made according to form No. 3 enclosed with this Circular.

Article 5. Contractors’ employment of foreign workers

1. A contractor that requests for employment of Vietnamese workers in the working positions expected to be performed by foreign workers under Clause 1, Article 5 of Decree No. 11/2016/ND-CP shall send such request, made according to form No. 4 enclosed with this Circular, to the chairperson of the provincial-level People’s Committee of the locality where the contractor performs the bidding package.

A contractor that wishes to adjust the declared number of foreign workers shall send a request, made according to form No. 5 enclosed with this Circular, to the chairperson of the provincial-level People’s Committee of the locality where the contractor performs the bidding package.

2. The chairperson of the provincial-level People’s Committee shall direct local agencies and organizations to introduce and supply Vietnamese workers for the contractor. If failing to do so, the chairperson of the provincial-level People’s Committee shall issue a decision, made according to form No. 6 enclosed with this Circular, permitting the contractor to recruit foreign workers for the working positions for which no Vietnamese worker can be recruited.

Chapter II

GRANT, RE-GRANT AND REVOCATION OF WORK PERMITS

Article 6. Dossier of application for a work permit

The papers specified in Clauses 1, 4 and 7, Article 10 of Decree No. 11/2016/ND-CP are guided as follows:

1. The written application for a work permit made by the employer as prescribed in Clause 1, Article 10 of Decree No. 11/2016/ND-CP must comply with form No. 7 enclosed with this Circular.

2. The document proving that the foreign worker is a specialist prescribed in Clause 4, Article 10 of Decree No. 11/2016/ND-CP, is either of the following papers:

a/ Written certification that the foreign worker is a specialist of an overseas agency, organization or enterprise, covering name of the certifying agency, organization or enterprise; information on the specialist: full name, date of birth, citizenship and profession of the specialist relevant to his/her expected working position in Vietnam;

b/ Proving paper specified at Point b, Clause 3, Article 3 of Decree No. 11/2016/ND-CP.

3. Papers proving that the foreign worker is a technical worker as prescribed in Clause 4, Article 10 of Decree No. 11/2016/ND-CP, include:

a/ Paper proving or written certification by an overseas agency, organization or enterprise that he/she has received at least one year’s training in the technical major or another major relevant to his/her expected working position in Vietnam;

b Paper proving that he/she has at least 3 years’ working experience in the trained major relevant to his/her expected working position in Vietnam.

4. The paper proving that the foreign worker was recruited by the concerned foreign enterprise for at least 12 months before working in Vietnam specified at Point a, Clause 7, Article 10 of Decree No. 11/2016/ND-CP, is one of the following:

a/ Written certification of recruitment of the foreign worker made by the employer;

b/ Labor contract;

c/ Decision on recruitment of the foreign worker;

d/ Certificate of tax or insurance premium payment by the foreign worker.

5. The paper proving that the foreign worker has worked for the foreign enterprise without commercial presence in Vietnam for at least 2 years prescribed at Point c, Clause 7, Article 10 of Decree No. 11/2016/ND-CP, is one of the papers prescribed in Clause 4 of this Article.

Article 7. Work permits

1. The form of work permit specified in Clause 2, Article 12 of Decree No. 11/2016/ND-CP is as follows:

a/ The work permit has A4 size (21 cm x 29.7 cm) and consists of 2 pages of which page 1 is blue and plastic-coated and page 2 has a white background and blue patterns with a star in the middle;

b/ The contents of the work permit are provided in form No. 8 enclosed with this Circular.

2. Work permits shall be issued uniformly by the Ministry of Labor, War Invalids and Social Affairs.

Article 8. Application for re-grant of a work permit

An employer’s application for re-grant of a work permit specified in Clause 1, Article 14 of Decree No. 11/2016/ND-CP must comply with form No. 7 enclosed with this Circular.

Article 9. Total working period in a year

The total working period in a year specified at Point e, Clause 2, Article 7 of Decree No. 11/2016/ND-CP is construed as a period of full 12 consecutive months calculated from the date the foreign worker starts working in Vietnam.

Article 10. Submission and receipt of dossiers of application for grant and re-grant of work permits; certification of eligibility for exemption from work permits

1. An employer shall submit a dossier of application for grant or re-grant of a work permit to the licensing agency.

2. An employer shall submit a dossier of request for certification of a foreign worker’s eligibility for exemption from a work permit to the licensing agency, in which the request for certification of eligibility must comply with form No. 9 enclosed with this Circular.

3. Upon receiving a dossier of application for grant or re-grant of a work permit or a request for certification of a foreign worker’s eligibility for exemption from a work permit, the licensing agency shall record it in the monitoring book according to form No. 10 enclosed with this Circular and hand a receipt to the employer. Such receipt must clearly state the date of receiving the dossier; papers included in the dossier; and deadline for reply.

4. The licensing agency shall keep dossiers of application for grant and re-grant of work permits and certification of eligibility for exemption from work permits in accordance with law.

Article 11. Written refusal of grant or re-grant of work permits; certification of foreign workers’ eligibility for exemption from work permits

1. In case of refusal to grant a work permit prescribed in Clause 2, Article 12 of Decree No. 11/2016/ND-CP or re-grant a work permit prescribed in Clause 2, Article 15 of Decree No. 11/2016/ND-CP, the licensing agency shall issue a written reply according to form No. 11 enclosed with this Circular.

2. The licensing agency shall certify that a foreign worker is exempt from a work permit as prescribed in Clause 4, Article 8 of Decree No. 11/2016 according to form No. 12 enclosed with this Circular. In case of refusal to certify such, it shall issue a written reply clearly stating the reason.

Article 12. Revocation of work permits

1. Revocation of work permits under Clause 1, Article 17 of Decree No. 11/2016/ND-CP:

a/ Within 15 days after a work permit expires, the employer shall revoke the work permit of the foreign worker and return it to the agency granting such permit, enclosed with a document clearly stating the reasons of each case of revocation, and cases subject to revocation which, however, cannot be done;

b/ Within 5 days after receiving a revoked work permit together with the employer’s document prescribed at Point a of this Clause, the licensing agency shall issue a written certification of receipt of the work permit revoked by the employer.

2. The decision on revocation of a work permit specified at Point b, Clause 3, Article 17 of Decree No. 11/2016/ND-CP must comply with form No. 13 enclosed with this Circular.

Article 13. Reporting regulations

1. Before the 5^th of the first month of the quarter following the reporting quater, a project owner shall report on the employment of foreign workers to the provincial-level Department of Labor, War Invalids and Social Affairs according to form No. 14 enclosed with this Circular.

2. Before the 10^th of the first month of the quarter following the reporting quater and before July 15 and January 15 of every year, provincial-level Departments of Labor, War Invalids and Social Affairs shall report to the Ministry of Labor, War Invalids and Social Affairs on the employment of foreign workers in their localities according to form No. 15 enclosed with this Circular.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 14. Responsibilities of the Department of Employment

1. To disseminate and train in the law on foreign workers in Vietnam.

2. To receive information on foreign workers in Vietnam in accordance with Point c, Clause 2, Article 20 of Decree No. 11/2016/ND-CP.

3. To manage, guide and examine the implementation of the law on foreign workers in Vietnam.

4. To synthesize and report on the situation of foreign workers in Vietnam.

5. To perform the responsibilities of the Ministry of Labor, War Invalids and Social Affairs specified in Clause 1, Article 3 and Clause 2, Article 7 of this Circular.

Article 15. Responsibilities of chairpersons of provincial-level People’s Committees

1. To direct related local agencies in law dissemination; to conduct examination and inspection and handle violations in their localities in accordance with the law on recruitment and management of foreign workers.

2. To direct local agencies and organizations in recommending and supplying Vietnamese workers to contractors.

3. To permit contractors to recruit foreign workers to each working position for which Vietnamese workers in their localities cannot be recruited.

4. To approve working positions in which foreign workers may be employed or which may be assigned to authorized agencies.

Article 16. Responsibilities of provincial-level Departments of Labor, War Invalids and Social Affairs

1. To disseminate Vietnam’s labor law for local enterprises and organizations.

2. To receive, summarize, appraise, approve and notify the demands for foreign workers as authorized by provincial-level People’s Committee chairpersons.

3. To recommend and supply Vietnamese workers to contractors in their localities in accordance with law.

4. To examine, inspect, and report on the implementation of law on recruitment and management of foreign workers in their localities.

5. To apply information technology to the management of, and grant or re-grant of work permits and certification of eligibility for exemption from work permits to, foreign workers in their localities.

Article 17. Responsibilities of employers

1. To strictly comply with Vietnam’s law on foreign workers in Vietnam.

2. To guide and provide foreign workers with Vietnam’s law on foreign workers in Vietnam.

3. To carry out procedures for requesting the grant or re-grant of work permits or certification of eligibility for exemption from work permit for foreign workers in Vietnam.

4. To lawfully and fully perform labor contracts signed with foreign workers in enterprises or organizations; to send written notices of the signing of labor contracts, enclosed with copies of these contracts, to the agencies granting work permits.

5. To manage dossiers of, and regularly update and supplement papers related to, foreign workers in enterprises or organizations.

6. To report on the employment of foreign workers as requested by state agencies.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 18. Effect

1. This Circular takes effect on December 12, 2016, and replaces the Ministry of Labor, War Invalids and Social Affairs’ Circular No. 03/2014/TT-BLDTBXH of January 20, 2014, guiding the implementation of a number of articles of the Government’s Decree No. 102/2013/ND-CP of September 5, 2013, detailing a number of articles of the Labor Code regarding foreign workers in Vietnam.

2. For a foreign worker currently possessing a valid work permit who is sent, transferred or seconded to the same working position for at least 10 consecutive days in a province or city other than the province or city where he/she is working, a new work permit is not required but the employer shall send a written notice to the provincial-level Department of Labor, War Invalids and Social Affairs of the locality where the foreign worker comes to work, including name of the enterprise or organization; workplace; working position; professional title and working duration of the foreign worker, enclosed with a certified copy of the granted work permit.

3. For a foreign worker being a specialist or a technical worker who has been granted a work permit, the work permit that remains valid is regarded as the document proving eligibility specified at Point d, Clause 8, Article 10, and Point d, Clause 3, Article 14, of Decree No. 11/2016/ND-CP in the dossier of application for grant or re-grant of a work permit.

Any problems arising in the course of implementation of this Circular 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
DOAN MAU DIEP

* All forms enclosed with this Circular are not translated.-