Decree No. 34/2008/ND-CP dated March 25, 2008 of the Government on employment and administration of foreigners working in Vietnam

DECREE

ON EMPLOYMENT AND ADMINISTRATION OF FOREIGNERS WORKING IN VIETNAM

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated 25 December 2001;
Pursuant to the Labour Code dated 23 June 1994 and the Law on Amendment of and Addition to the Labour Code dated 2 April 2002;
Pursuant to the Law on Investment dated 29 November 2005;
On the proposal of the Minister of Labour, War Invalids and Social Affairs ['Minister of Labour"],

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Governing scope and applicable entities

This Decree regulates the employment and administration of foreigners working in Vietnam; the order and procedures for issuance of work permits and the use of work permits; and the responsibilities of foreigners, employers and State bodies in the employment and administration of foreigners working in Vietnam.

This Decree applies to foreigners working in Vietnam and to enterprises and organizations in Vietnam which employ foreign employees, specifically as follows:

1. Foreigners working in Vietnam in the following forms:

a/ Pursuant to a labour contract;

b/ Internal transfer within an enterprise which has a commercial presence in Vietnam;

c/ Performance of any of the following types of contract, namely economic, commercial, financial, banking, insurance, scientific and technical, cultural, sporting, educational or medical health contracts;

d/ Service providers pursuant to contract;

dd/ People offering services;

e/ Foreigners representing a foreign non-Governmental organization which is permitted to operate pursuant to the law of Vietnam.

2. Enterprises and organizations employing foreign employees, comprising:

a/ Enterprises operating pursuant to the Law on Enterprises [and/or] the Law on Investment,

b/ Foreign contractors (head contractors and sub-contractors) awarded with a contract in Vietnam;

c/ Representative offices and branches of economic, commercial, financial, banking, insurance, scientific and technical, cultural, sporting, educational, and medical health organizations;

d/ Socio-political, social, socio-occupational and socio-occupational-political organizations; and non-Governmental organizations;

dd/ State professional units;

e/ Medical health, cultural, educational and sporting establishments permitted to be established by the competent body;

g/ Offices of foreign or international projects in Vietnam;

h/ Operating offices of foreign partners pursuant to business co-operation contracts in Vietnam;

i/ Organizations practising law in Vietnam in accordance with the law of Vietnam;

k/ Co-operatives and co-operative groups established and operating pursuant to the Law on Cooperatives.

The above enterprises and organizations are all referred to as employers.

Article 2.- Interpretation of terms

In this Decree, the following terms shall be construed as follows:

1. Foreigner means a person without Vietnamese nationality in accordance with the Law on Vietnamese Nationality.

2. Manager [or] executive director means a foreigner directly managing a foreign enterprise which has established a commercial presence in Vietnam, and who is only subject to general supervision or direction by the board of management or shareholders of the enterprise or equivalent level. Management of an enterprise comprises instructing such enterprise or any office, section or subsidiary unit of the commercial presence; supervising and controlling the work of specialized staff, managers or other supervisors; having the right to hire and dismiss or to recommend the hiring and dismissal of or [managing the] activities of other staff. Managers [and] executive directors shall not directly carry out work related to provision of services by the commercial presence.

3. Expert means a foreigner with specialist and highly technical qualifications regarding services; and regarding research, technical knowledge or management of equipment (and includes engineers or people with qualifications equivalent to the level of engineer or higher; and includes artisans in traditional occupations and trades) and [means] people with considerable experience in an occupation or trade, in operating production and business and in managerial work.

4. Foreigner internally transferring within an enterprise comprises any of the above-mentioned managers, executive directors and experts of a foreign enterprise which has already established a commercial presence within the territory of Vietnam who temporarily transfer within the enterprise to the commercial presence within the territory of Vietnam and who have been employed by the foreign enterprise for at least twelve (12) months prior to such transfer.

5. Foreigner offering services means a person who does not live in Vietnam and who does not receive remuneration from any source in Vietnam, and who participates in activities relating to representation of a service supplier in order to negotiate the sale [or consumption] of services of such supplier, on condition that he or she does not directly sell such services to the public and does not directly participate in the provision of services.

6. Service provider pursuant to a contract means a foreigner working in a foreign enterprise which does not have a commercial presence in Vietnam. Such person must have worked for the foreign enterprise without a commercial presence in Vietnam for at least two (2) years, and must satisfy the same conditions which apply to experts as stipulated in clause 3 of this article.

7. Vietnamese parly comprises:

a/ The legal representative of an enterprise or organization in Vietnam which has a contract with a foreign party for the foreign party to provide services, to offer services and to perform any type of contract being an economic, commercial, financial, banking, insurance, scientific and technical, cultural, sporting, educational or medical health contract.

b/ The representative of a foreign enterprise or organization which has already established a commercial presence within the territory of Vietnam in accordance with the law of Vietnam.

8. Commercial presence means a service provider bearing the nationality of any one country who goes to a second country and establishes a legal entity within and provides services in such second country. For example, a commercial bank opens a branch overseas.

Chapter II

RECRUITMENT AND ADMINISTRATION OF FOREIGN EMPLOYEES WORKING IN VIETNAM

Article 3.- Foreigners must satisfy all of the following conditions in order to work in Vietnam:

1. Must be eighteen (18) years of age or older.

2. Must be in good health as necessary to satisfy the job requirements.

3. Must be a manager, executive director or an expert as stipulated in clauses 2 and 3 of article 2 of this Decree.

Foreigners applying to work in a private medical or pharmaceutical practice or to directly carry out medical examination and treatment in Vietnam, or to work in the educational and occupational training sectors must satisfy all conditions stipulated by the law of Vietnam in relation to private medical or pharmaceutical practice, or education and occupational training.

4. Must not have a criminal record for a national security offence; and must not currently be subject to criminal prosecution or any criminal sentence in accordance with the law of Vietnam and foreign laws.

5. Must have a work permit issued by the authorized State body of Vietnam, except in the cases stipulated in article 9.1 of this Decree where a work permit is not required.

Article 4.- Recruitment of foreigners to work in Vietnam pursuant to a labour contract

1. An employer shall be permitted to recruit foreign workers who fully satisfy the conditions stipulated in article 3 of this Decree in order to work as managers, executive directors and experts where Vietnamese workers are not yet able to satisfy such production and business requirements.

2. An application file to register the proposed recruitment of a foreigner: the foreigner shall lodge two sets of an application file with the employer, the employer shall administer one set and the other set shall be retained by the employer to conduct procedures for registration for issuance of a work permit. Each set of the application file shall comprise:

a/ Registration slip regarding the proposed recruitment of the foreigner on the standard form prescribed by the Ministry of Labour.

b/ Legal record issued by the authorized body of the country where the foreigner resided prior to coming to Vietnam. If the foreigner has currently resided in Vietnam for six (6) months or more, then there need only be a legal record issued by the Vietnamese Department of Justice of the locality where the foreigner is residing.

c/ Curriculum vita of the foreigner on the standard form prescribed by the Ministry of Labour.

d/ Health certificate issued overseas or health certificate issued in Vietnam in accordance with the regulations of the Ministry of Health.

dd/ Copies of certificates of specialist lor] highly technical qualifications of the foreigner. A foreigner who is an artisan in a traditional occupation or trade or who has experience in an occupation or trade or in operating production or in managerial work and who does not possess certificates or diplomas must have a document from the authorized body of the country of his or her nationality certifying that he or she has at least five years' experience in an occupation or trade, in operating production or in managerial work.

e/ Three colour photos (3cm by 4cm in size, bareheaded, frontal view, showing the face and ears clearly, without glasses, and on a white background) taken within the last six (6) months from the date on which the foreigner lodges the application file.

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