New Rules on Foreign Employees and Organizations

On the 30th of December 2020, the Vietnamese Government adopted the Decree No.152/2020/ND-CP on foreign workers in Vietnam and the recruitment and management of Vietnamese workers of foreign organizations and foreign individuals in Vietnam (hereinafter referred to as “Decree 152“) which is in effect from February 15th, 2021.

Highlights of Decree 152 include certain exemptions for Work Permits for foreign employees working in Vietnam. Compared to the previous Decree 11/2016/ND-CP and Decree 75/2014/ND-CP, the newly-issued Decree 152 has added several categories of foreigners exempt from requiring a Work Permit, such as:

1. Relatives of employees of foreign representative missions in Vietnam;
   

2. Foreigners married to a Vietnamese citizen and living in the territory of Vietnam;

3. Owners or shareholding members of a LLC or chairpersons or members of the Board of Directors of JSC, in both cases there shall be a capital contribution of at least 3 billion VND;
   

4. Foreign manager, executive, expert or technical worker entering Vietnam for a period of work of less than 30 days and no more than 3 times a year;
   

5. The person responsible for establishing a commercial presence for a foreign entity in Vietnam.

Only in relation to point number 5 shall the Vietnamese sponsoring organization be required to complete the Work Permit exemption certification procedure, in all of the other abovementioned instances they are merely required to report to the labor authorities at least 3 days in advance of the commencement of work in Vietnam. This is a more than welcome provision as entering the country has been quite troublesome due to current health safety measures.

The Decree also re-defines the definition of “Foreign Expert” as a person having a bachelor’s degree or higher or equivalent and have at least 3 years of experience working in the relevant trained field or having at least 5 years of experience and a practicing certificate relevant to the job. A certificate issued by an overseas organization is no longer accepted as a supporting document to qualify as an expert and prove expertise. Foreign Experts are among the few foreigners who are permitted to enter the country during the recent border closure.

Economic organizations with foreign-invested capital of 51% or more of the charter capital are now allowed to directly recruit employees or recruit through job service centers, labor leasing enterprises or via other competent organizations.

Foreign organizations shall identify the demand of foreign employees for each position that Vietnamese workers are yet to satisfy, apart from contractors for public tenders. The report shall be submitted to the MOLISA (Ministry of Labour, Invalids and Social Affairs) at least 30 days prior to the planned first day of activity for such foreign employees. Furthermore, before recruiting foreign employees, contractors are required to specify and include in the bidding dossier the number, professional capacity and experience of foreign workers they expect to employ.

Prior to July 5th and January 5th of the following year, employers shall have to submit bi-annual and annual reports on the usage of foreign workers.

We at D’ Andrea and Partners Legal Counsel, have a team of experts to help you address matters of both HR and Labor Law. Do get in touch with us at info@dandreapartners.com for any questions or assistance.