Decree 70/2023/ND-CP amend Decree 152/2020/ND-CP on foreign workers in Vietnam

DECREE

Amending and supplementing a number of articles of the Government's Decree No. 152/2020/ND-CP dated December 30, 2020, on foreign workers in Vietnam and recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam

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Pursuant to the Law on Organization of the Government dated June 19, 2015, and the Law Amending and Supplementing a Number of Articles of the Law on Organization of the Government and the Law on Organization of Local Administration dated November 22, 2019;

Pursuant to the Labor Code dated November 20, 2019;

Pursuant to the Law on Investment dated June 17, 2020;

Pursuant to the Law on Enterprises dated June 17, 2020;

At the proposal of the Minister of Labor, Invalids and Social Affairs;

The Government hereby promulgates the Decree amending and supplementing a number of articles of the Government's Decree No. 152/2020/ND-CP dated December 30, 2020, on foreign workers in Vietnam and recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam.

Article 1. Amending and supplementing a number of articles of the Government's Decree No. 152/2020/ND-CP dated December 30, 2020, on foreign workers in Vietnam and recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam

1. To amend and supplement a number of points and clauses of Article 3 as follows:

a) To amend and supplement Point a Clause 3 Article 3 as follows:

“a) Graduating from university or higher or equivalent and having at least 3 years’ working experience in his/her trained discipline relevant to his/her expected job assignment in Vietnam.”.

b) To amend and supplement Clause 5 Article 3 as follows:

“5. Executive includes one of the following persons:

a) The head of a branch, representative office, or business location of an enterprise.

b) The person who leads and directly manages at least one field of an agency, organization, or enterprise, and is subject to the direct direction and management of the head of such agency, organization, or enterprise.”.

c) To amend and supplement Point a Clause 6 Article 3 as follows:

“a) Having been trained for at least 1 year and having at least 3 years’ working experience relevant to his/her expected job assignment in Vietnam.”.

2. To amend and supplement Article 4 as follows:

“Article 4. Employment of foreign workers

1. Determination of the demand for employment of foreign workers

a) At least 15 days before the expected date of employment of foreign workers, employers (except contractors) shall determine their demand for employment of foreign workers for each job assignment which Vietnamese workers cannot perform, and send a report, made according to Form No. 01/PLI provided in Appendix I to this Decree, to the Ministry of Labor, Invalids and Social Affairs or provincial-level Departments of Labor, Invalids and Social Affairs of localities where foreign workers are expected to work.

If changing their demand for employment of foreign workers in terms of job assignment, job title, working form, number or location, at least 15 days before the expected date of employment of foreign workers, employers shall send a report on the change, made according to Form No. 02/PLI provided in Appendix I to this Decree, to the Ministry of Labor, Invalids and Social Affairs or provincial-level Departments of Labor, Invalids and Social Affairs.

b) For foreign workers specified in Clauses 3, 4, 5, 6 and 8 Article 154 of the Labor Code and Clauses 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, 13 and 14 Article 7 of this Decree, employers are not required to determine their demand for employment of foreign workers.

c) From January 1, 2024, the notice of recruitment of Vietnamese workers for job assignments expected to recruit foreign workers shall be posted on the Ministry of Labor, Invalids and Social Affairs’ e-portal (the Department of Employment) or e-portals of Centers of Employment Services established under decisions of Chairpersons of provincial-level People’s Committees for at least 15 days after the expected date of explanatory report to the Ministry of Labor, Invalids and Social Affairs or provincial-level Departments of Labor, Invalids and Social Affairs of localities where foreign workers are expected to work. Such a recruitment notice must include the following information: Job assignment and title, job description, number, requirements on qualifications, experience, salary, working time and location. After failing to recruit Vietnamese workers for job assignments expected to recruit foreign workers, employers shall determine their demand for employment of foreign workers under Point a Clause 1 of this Article.

2. The Ministry of Labor, Invalids and Social Affairs or provincial-level Departments of Labor, Invalids and Social Affairs shall, within 10 working days after receiving an explanatory report or explanatory report on changes in the demand for employment of foreign workers, issue documents on approval or disapproval of the employment of foreign workers for each job assignment according to Form No. 03/PLI provided in Appendix I to this Decree.”.

3. b) To add Clause 3 Article 6 as follows:

“3. In case where a foreign worker works for an employer in different provinces or centrally-run cities, such employer shall, within 3 working days from the date on which the foreign worker starts working, submit a report, made according to Form No. 17/PLI provided in Appendix I to this Decree, via the electronic environment, to the Ministry of Labor, Invalids and Social Affairs and provincial-level Departments of Labor, Invalids and Social Affairs of localities where the foreign worker works.”.

4. To amend and supplement a number of clauses of Article 7 as follows:

b) To amend and supplement Clause 6 Article 7 as follows:

“6. He/she is sent by a foreign authority to Vietnam to carry out lecturing activities, or to act as the manager or executive at educational institutions established in Vietnam under the proposal of the diplomatic representative missions or inter-governmental organizations; or at establishments or institutions established under treaties which Vietnam has signed or acceded to.”

b) To amend and supplement Clause 14 Article 7 as follows:

“14. He/she is certified by the Ministry of Education and Training as a foreigner entering Vietnam to:

a) Carry out lecturing and research activities;

b) Act as the manager, executive, principal, or vice principal at educational institutions established in Vietnam under the proposal of the diplomatic representative missions or inter-governmental organizations.”.

5. To amend and supplement a number of points and clauses of Article 9 as follows:

a) To amend and supplement Clause 1 Article 9 as follows:

“1. An employer’s application for a work permit, made according to Form No. 11/PLI provided in Appendix I to this Decree. In case where a foreign worker works for an employer in different locations, such application for a work permit must indicate all working locations.”

c) To amend and supplement Point a and Point b Clause 4 Article 9 as follows:

a) A paper proving that the foreign worker is a manager, or an executive as defined in Clauses 4, 5 Article 3 of this Decree, including 3 types of papers as follows:

A company charter or operational regulation of an agency, organization or enterprise;

An enterprise registration certificate, establishment certificate, establishment decision or other documents of equivalent legal validity;

A resolution or decision on appointment of the agency, organization or enterprise.

b) A paper proving that the foreign worker is an expert or technical worker as defined in Clauses 3, 6 Article 3 of this Decree, including 2 types of papers as follows:

A degree or certificate;

A written certification of the expert’s or technical worker’s working experience issued by an overseas agency, organization, or enterprise, or issued work permit, or issued certificate of exemption from work permit.”.

c) To amend and supplement the title of Clause 8 Article 9 as follows:

“8. Papers related to the foreign worker, except for those specified at Point a Clause 1 Article 2 of this Decree.”.

d) To amend and supplement Point e Clause 8 Article 9 as follows:

“e) For a foreign worker specified at Point i Clause 1 Article 2 of this Decree, he/she shall produce a document of the foreign enterprise, agency or organization sending him/her to work in Vietnam as suitable to the job assignment he/she is expected to perform, or a paper proving he/she is the manager as prescribed in Clause 4 Article 3 of this Decree.”.

dd) To add Point c Clause 9 Article 9 as follows:

“c) For a foreign worker being an expert or technical worker who has his/her work permit extended once, and wishes to continue working at the same job assignment and title as that stated in the work permit, his/her dossier of application for a new work permit must comprise the papers specified in Clauses 1, 2, 5, 6, 7, and 8 of this Article, and a copy of the granted work permit.”.

6. a) To amend and supplement Clause 2 Article 11 as follows:

“2. Within 5 working days after receiving a complete dossier of application for a work permit, the Ministry of Labor, Invalids and Social Affairs or provincial-level Department of Labor, Invalids and Social Affairs of the locality where the foreign worker is expected to work shall issue a work permit to the foreign worker according to Form No. 12/PLI provided in Appendix I to this Decree. In case of refusal to issue such a work permit, it shall issue a written reply clearly stating the reason.

A work permit has A4 size (21 cm x 29.7 cm) and consists of two pages of which page 1 is blue and page 2 has a white background and blue patterns with a star in the middle. A work permit is coded as follows: province or centrally-run city codes and codes of the Ministry of Labor, Invalids and Social Affairs according to Form No. 16/PLI provided in Appendix I to this Decree; the last 2 digits of the year of granting the permit; type of permit (new issuance - symbol 1; extension - symbol 2; re-issuance - symbol 3); serial number (from 000.001).

In case where the work permit is made in electronic form, it must comply with relevant laws and contain the information specified in Form No. 12/PLI provided in Appendix I to this Decree.”.

7. To amend and supplement Clause 3 Article 12 as follows:

“3.  The enterprise identification number stated in the valid work permit remains unchanged but the worker’s full name, citizenship, passport number, working place or the enterprise’s name stated therein is changed.”.

8. To amend and supplement Clause 7 Article 17 as follows:

“One of the papers specified in Clause 8 Article 9 of this Decree proving that the foreign worker continues to work for the employer under the issued work permit, except for the cases where the foreign worker works under Point a Clause 1 Article 2 of this Decree.”.

9. To amend and supplement Point b Clause 1 Article 22 as follows:

“b) Organizations that are decentralized or authorized or perform tasks assigned or orders placed or carry out bidding activities as assigned by provincial-level People’s Committees.”.

10. To amend and supplement Point b Clause 4 Article 27 as follows:

“b) Organizations that are decentralized or authorized or perform tasks assigned or orders placed or carry out bidding activities as assigned by provincial-level People’s Committees in recruitment and management of Vietnamese workers working for foreign organizations and individuals shall send reports to provincial-level Departments of Labor, Invalids and Social Affairs.”.

11. To amend and supplement a number of points and clauses of Article 30 as follows:

a) To amend and supplement Point a Clause 1 Article 30 as follows:

“a) To approve the demand for employment of foreign workers; to certify exemption from work permit; issue, re-issue, extend and revoke work permits for foreign workers falling into one of the following cases:

Working for the employers specified at Point g Clause 2 Article 2, and employers specified at Points c, d, e Clause 2 Article 2 of this Decree that are established under permission of the Government, Prime Minister, ministries, ministerial-level agencies or government-attached agencies;

Working for an employer in different provinces and centrally-run cities.”.

b) To amend and supplement Point c Clause 1 Article 30 as follows:

“c) To perform the unified state management of recruitment and management of foreign workers in Vietnam from central to local levels, and management of Vietnamese workers working for foreign organizations or individuals in Vietnam.”.

c) To amend and supplement Clause 3 Article 30 as follows:

3. Responsibilities of the Ministry of National Defense:

a) To coordinate with agencies competent to manage foreign workers, Vietnamese workers working for foreign organizations or individuals in Vietnam in implementing law regulations on assurance of security and order strategic areas, key areas, and important areas in terms of national defense.

b) To direct the Border Guard to coordinate with functional forces to manage and inspect Vietnamese workers working for foreign organizations and individuals in Vietnam and foreign workers working in the border areas, border gates, islands, and sea areas to firmly protect the territorial sovereignty, security, and national borders of the Fatherland.”.

d) To amend and supplement Point a Clause 4 Article 30 as follows:

“a) Monthly, to provide the Ministry of Labor, Invalids and Social Affairs with information on foreign workers who are issued visas coded DN1, DN2, LV1, LV2, LD1, LD2, DT1, DT2, DT3, DT4 to work for agencies, organizations or enterprises;”.

dd) To amend and supplement Point a Clause 6 Article 30 as follows:

“a) To approve the demand for employment of foreign workers; to certify exemption from work permit; issue, re-issue, extend and revoke work permits for foreign workers falling into one of the following cases:

Working for the employers specified at Points a, b, h, i, k, and l Clause 2 Article 2, and the agencies and organizations specified at Points c, d, and e, Clause 2 Article 2 of this Decree that are established by provincial-level People’s Committees, specialized agencies of provincial-level People’s Committees or district-level People’s Committees;

Working for an employer in different places in the same province or centrally-run city.”.

12. To amend and supplement a number of forms as follows:

a) To replace Forms No. 01/PLI; No. 02/PLI; No. 07/PLI; No. 08/PLI provided in Appendix I to Decree No. 152/2020/ND-CP with Forms No. 01/PLI; No. 02/PLI; No. 07/PLI; No. 08/PLI in the Appendix to this Decree;

b) To add Form No. 16/PLI and Form No. 17/PLI to Appendix I to Decree No. 152/2020/ND-CP.

13. To replace and add a number of words and phrases to the following points, clauses, articles and appendices:

a) To replace the phrase “Chairpersons of provincial-level People’s Committees” in Clause 1 Article 5 with the phrase “provincial-level Departments of Labor, War Invalids”; to replace the phrase “Chairpersons of provincial-level People’s Committees shall direct” with the phrase “provincial-level Departments of Labor, War Invalids shall request” in Clause 2 Article 5;

b) To replace the phrase “Clauses 4, 6 and 8 Article 154” with the phrase “Clause 4 and Clause 6 Article 154” and replace the phrase “3 days” with the phrase “3 working days” in Clause 2 Article 8;

c) To replace the phrase “translated into Vietnamese and certified” with the phrase “translated into Vietnamese and notarized or certified” at Point e Clause 3 Article 8;

d) To replace the phrase “translated into Vietnamese and certified” with the phrase “translated into Vietnamese and notarized or certified” in Clause 10 Article 9 and Clause 4 Article 23;

dd) To replace the phrase “The papers specified in Clauses 3 and 4 of this Article” with the phrase “The papers specified in Clause 3 of this Article” in Clause 5 Article 13;

e) To replace the phrase “translated into Vietnamese” with the phrase “translated into Vietnamese and notarized or certified” in Clause 5 Article 13 and Clause 8 Article 17;

g) To replace the phrase “A certified copy of the passport” with the phrase “A certified copy of the passport or a passport's copy certified by the employer” at Point d Clause 3 Article 8; Clause 7 Article 9 and Clause 5 Article 17;

h) To replace the phrase “20. Salary: ...... VND” with the phrase “20. Average salary/month: ...... million dong” in Form No. 11/PLI provided in Appendix I to Decree No. 152/2020/ND-CP;

i) To replace the phrase “People’s Committee of province/city ......” with the phrase “Department of Labor, Invalids and Social Affairs of ........” in Form No. 03/PLI provided in Appendix I to Decree No. 152/2020/ND-CP;

k) To replace the phrase “Director/Chairperson of provincial-level People’s Committee” with the phrase “Director”, replace the phrase “At the proposal given in Document No.” with the phrase “At the proposal and information provided in Document No.” in Form No. 03/PLI provided in Appendix I to Decree No. 152/2020/ND-CP;

l) To replace the phrase “Chairperson of People’s Committee of province/city ......” with the phrase “Department of Labor, Invalids and Social Affairs of ........” in Forms No. 04/PLI, 05/PLI and 06/PLI provided in Appendix I to Decree No. 152/2020/ND-CP;

m) To replace the phrase “On behalf of People's Committee of province/city..../Chairperson” with the phrase “Director” in Form No. 06/PLI provided in Appendix I to Decree No. 152/2020/ND-CP.

n) To add the phrase “(Enterprise/organization) undertakes that the above information is true, and that the (enterprise/organization) takes full responsibility before the law for it” after Section 24 of Form No. 09/PLI provided in Appendix I to Decree No. 152/2020/ND-CP.

o) To add the phrase “Department of Immigration (the Ministry of Public Security)” in section “Recipients” in Form No. 13/PLI provided in Appendix I to Decree No. 152/2020/ND-CP.

14. To repeal a number of points and clauses as follows:

a) To repeal Clause 4 Article 13;

b) To repeal Points c, d, dd Clause 5 and Point g Clause 6 of Article 30;

c) To repeal Point a Clause 6a Article 30 of the Government’s Decree No. 152/2020/ND-CP dated December 30, 2020, on foreign workers in Vietnam and recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam, which was amended and supplemented under the Government's Decree No. 35/2022/ND-CP dated May 28, 2022, providing the management of industrial parks and economic zones.

Article 2. Repealing a number of provisions of the Government’s Decree No. 35/2022/ND-CP dated May 28, 2022, providing the management of industrial parks and economic zones

1. To repeal the first paragraph “Granting, re-granting, extending and revoking work permits for foreign workers in industrial parks and economic zones and certifying foreign workers’ eligibility for exemption from work permit” and the phrase “receiving reports on employment of foreign workers” at Point dd Clause 2 Article 68.

2. To repeal the paragraph “to receive explanatory reports of enterprises in industrial parks and economic zones on the demand for foreign workers for each position which Vietnamese cannot fill in” at Point c Clause 3 Article 68.

Article 3. Implementation provisions

1. This Decree takes effect from September 18, 2023.

2. Transitional provisions:

For explanatory reports on employment of foreign workers, dossiers of request for certification of exemption from work permit; issuance, re-issuance or extension of work permits that have been submitted to the Ministry of Labor, Invalids and Social Affairs, provincial-level People’s Committees, provincial-level Departments of Labor, Invalids and Social Affairs, Management Boards of Industrial Parks, Economic Zones or Hi-tech zones by foreign workers before the effective date of this Decree, the provisions of the Government’s Decree No. 152/2020/ND-CP dated December 30, 2020, on foreign workers in Vietnam and recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam, and the Government’s Decree No. 35/2022/ND-CP dated May 28, 2022, providing the management of industrial parks and economic zones, shall be applied.

* All Appendices are not translated herein.