• Guidelines Released to Implement Immigration Decree on March 10
  • March 11, 2014
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • Vietnam’s Ministry of Labor, Invalids and Social Affairs (MOLISA) has issued a circular specifying new guidelines for work permit applications, among them document requirements and mandatory time frames for employers to submit foreign worker demand reports. The circular, which will take effect on March 10, gives practical effect to some of the changes to work permit rules made by Decree 102, which was announced on November 1, 2013. The circular’s guidelines should result in a more consistent interpretation of work permit rules by MOLISA, though further guidelines are expected to be announced in the future.

    Work permit processing is expected to fully resume on March 10. Some local Labor Department offices have been hesitant to advise on the decree, and in some instances, have refused to accept or review work permit applications until they receive the circular detailing how to implement the decree’s changes.

    Time Frames to Submit Foreign Worker Demand Reports

    Employers will be required to submit a Foreign Worker Demand Report (FWDR) to the Labor Department office of the province or city where the company’s head office is located at least 30 days prior to hiring a foreign worker. The FWDR must specify of the number of foreign workers the employer will seek to employ in the following twelve months.

    The Labor Department will forward the report to the People’s Committee and must notify the employer of the People’s Committee’s decision within 15 calendar days. An individual’s work permit application process with the Department of Labor can only begin once the People’s Committee issues an approval of the company’s FWDR.

    The circular does not provide any guidance as to the criteria the People’s Committee will use to approve or reject the demand report. As such, it is expected that the People’s Committee decisions will be entirely discretionary.

    Document Requirements for Work Permit Applicants

    Certain professional and technical workers with proven qualifications are eligible for work permits under the decree. Currently, only managers, executives and specialists qualify for work permits.

    The circular establishes the following document requirements for these occupations:

    Managers and Executives:
    • Any document that verifies the current Manager/Executive position, such as a valid or expired work permit or work contract from any country or an assignment letter confirming that the foreign national has worked as a Manager or Executive; or
    • Any document issued by former employer(s) that confirms the foreign national worked as a Manager/ Executive.

    A university degree or proof of five years' work experience is no longer required for Manager/Executive positions.

    Specialists:
    • A university or postgraduate degree and proof of at least five years' work experience. Both the degree and proof of experience should be related to the position in Vietnam; or
    • A document issued by a foreign professional committee or organization that shows specialized qualifications; or
    • A letter or other document issued by the overseas employer that confirms the foreign national is a specialist in the field of work in Vietnam.

    Technical Workers:
    • A document or confirmation letter issued by a foreign professional committee or organization or by the overseas employer that demonstrates the foreign national has been trained for at least one year in the technical fields related to the position in Vietnam; and
    • An employment verification letter issued by the current or former employer(s) showing at least three years’ experience in a similar technical field.

    Work Permit Exemptions

    The circular does not provide further guidance on how officials should interpret and apply the worker permit exemptions created by Decree 102.

    Work permit exemptions are currently difficult to obtain, as each Labor Department office has discretion to interpret how to apply exemption rules. Therefore, while certain exempt categories under the Decree would typically cover short-term assignments into Vietnam, the particular Labor office where the work permit exemption report is filed may interpret the Decree narrowly.

    The Ministry of Industry and Trade is expected to release its own circular by the end of March with additional guidelines on criteria and procedures for work permit exemptions. The circular will describe specific criteria, such as how to certify that a foreign national qualifies for an exemption as a corporate transferee operating within one of the eleven sectors listed in Vietnam’s World Trade Organization service commitment.

    What This Means for Employers

    The circular provides the Labor Department offices with further guidelines to implement Decree 102, with the goal of reducing further uncertainty and delays. Employers will benefit from the assurance of government-mandated processing times for FWDRs and defined eligibility criteria for work permits.