From September 28, 2023, a series of new regulations on foreign
workers in Vietnam will officially take effect. The specific
content is recorded in Decree No. 70/2023/ND-CP that this Decree
will amend, supplement and abolish some contents of Decree
152/2020/ND-CP. Therefore, enterprises using foreign workers or
having recruitment plans will need to pay attention to meet the
provisions of the new decree, as well as prepare documents in
accordance with the requirements of the licensing authorities. We
will share information about the new regulations specifically in
this article, and the forms are attached at the end of the
article.
- Changes in regulations on determining Foreign
experts
For experts
According to previous regulations, the criteria for determining
an Expert who is a foreign worker if he/she has a bachelor’s
degree or higher or equivalent, and at least 3 years of working
experience in a specialized training which is appropriate to the
position that he/she expects to work in Vietnam;
Currently, this regulation has changed the requirement of
working experience in the specialized training and replaced it with
the regulation of at least 3 years of working experience which
is appropriate to the position that foreign workers expect to
work in Vietnam without requiring experience in the specialized
training recorded in certificates and degrees.
For technical workers
Similar to the expert, instead of meeting the requirement of
working at least 3 years in the specialized training as per
previous regulations, the criteria for determining technical
workers are: (i) having been trained for at least 1 year and (ii)
having at least 3 years of working experience which is appropriate
to the position that foreign workers expect to work in Vietnam
Changing the understanding of expert and technical worker
positions facilitates enterprises as well as foreign workers when
proving foreign workers’ experience corresponding to each
position expected to be recruited.
Chief Executive Officer
According to the previous definition, the Chief Executive
Officer is understood as the head and direct manager of the unit
under an agency, organization or enterprise.
The new regulations clearly define the chief executive officer
as the person in one of the following cases: (i) The head of a
branch, representative office or business location of the
enterprise, (ii) The head directly manages at least 1 field of an
agency, organization or enterprise and is subject to the direct
direction and management of the head of the agency, organization or
enterprise.
Adjusting the understanding and determination of the Chief
Executive Officer position as the new regulation will create
flexibility and convenience for enterprises. The personnel
structure of each country is different from that in some
multinational enterprises, in addition to the head of the
enterprise as legal representative, the enterprise also has many
chief executive officer positions for each different field.
- Changes in “Determination of demand for using
foreign workers”
Determination of demand for using foreign workers is the first
step in the procedures for applying for a Work Permit or confirming
that it is not subject to a Work Permit.
According to previous regulations, dossier determination of
demand for using foreign workers must be submitted at least 30 days
before the expected date of using foreign workers and reporting
explanation to the Ministry of Labor, War Invalids and Social
Affairs or the People’s Committee of province or city under the
central Government depending on each specific case. However,
the new decree has changed that this
period of 30 days is shortened to 15 days, as well as the
competent authority is the Ministry of Labor, War Invalids and
Social Affairs or the Department of Labor, War Invalids and Social
Affairs depending on each specific case.
In addition, in the process, if there is any change in the
demand for using foreign workers regarding the job position, job
title, working mode, quantity of workers, or working location, the
enterprise must report to the Ministry of Labor, War Invalids and
Social Affairs at least 15 days before the expected date of using
foreign workers. This period is shortened compared to the previous
regulation which is 30 days.
- Announcement of recruitment of workers
This is a new regulation which is particularly important and
enterprise’s human resource management departments need to pay
attention to. From January 1, 2024, the announcement of recruitment
of Vietnamese workers to positions expected to recruit foreign
workers shall be made on the portal of the Ministry of
Labor, War Invalids and Social Affairs (Department of Employment)
or the portal of the Employment Service Center, which is
established by the President of the People’s Committee of
province or city under the central Government, within at least 15
days from the expected date of reporting explanation to the
Ministry of Labor, War Invalids and Social Affairs or the
Department of Labor, War Invalids and Social Affairs where the
foreign worker is expected to work.
The recruitment announcement shall contain the job position and
job title, job description, quantity of workers, required
qualifications and experience, salaries, working time and location.
After failing to recruit Vietnamese workers for positions which are
expected to recruit foreign workers, the employer is responsible
for determining the demand for employing foreign workers in
accordance with the regulations mentioned in Section 2.
- Additional report obligations
In addition to the obligations to report periodically in the
first 6 months of the year and annual reports, under the new
regulations, enterprises employing foreign workers will have
additional obligations to report online to the Ministry of Labor
– War Invalids and Social Affairs, Department of Labor
– War Invalids and Social Affairs where foreign workers come
to work. This reporting will apply in the case of foreign workers
working for an employer in multiple provinces, and municipalities.
Enterprises are required to implement reporting obligations within
03 working days from the date the foreign workers start
working.
- Amending some cases of foreign workers exempt from work
permit
In the education and training sector, the old regulations only
recognized the case of foreign workers “Being sent to Vietnam
by a foreign competent authority or organization to teach or do
research at an international school managed by the foreign
diplomatic mission or United Nations; facilities, organizations
established under agreements that Vietnam has signed and
joined.” Currently, the new regulations in Decree
70/2023/ND-CP have added the case that foreign workers sent to
Vietnam by a foreign competent authority or organization to teach
or work as managers, and executives at the above organizations are
also in the case exempt from work permits.
Similarly, Decree 70/2023/ND-CP adds cases that foreign workers
are exempt from work permits when the Ministry of Education and
Training is confirmed to enter Vietnam to assume managers
positions, executive directors, principal, subprincipal of
educational institutions proposed by foreign diplomatic mission or
intergovernmental organizations for establishment in Vietnam.
- Supplementing regulations on documents proving to be
managers, executives, experts, technical workers
For managers and executives: the old regulation only
recorded general documents proving that managers and executives,
but there were no detailed instructions, which led to difficulties
for enterprises to implement as well as inconsistent understanding
and application from the licensing authority.
Currently, the new regulations have detailed the direction of
listing documents that are considered documents proving the status
of managers and executives, specifically:
- The company’s charter or operation regulations of
authorities, organizations, or enterprises; - Enterprise Registration Certificate or establishment
certificate or establishment decision or other document of
equivalent legal validity; - Resolutions or appointment decisions of authorities,
organizations, or enterprises.
For the expert position and technical worker:
accordingly, the new regulation has listed documents that are
considered as documents proving experts, the technical worker will
include:
- Diplomas or certificates or certificates;
- A written certification by the overseas authority,
organization, or enterprise of several years of experience of
experts, technical workers, or work permits that have been issued
or confirmed exempt from work permits that have been
issued.”
- Additional cases of re-issuance of work
permits
According to the old regulations, when there is a change in
surname and surname, nationality, passport number, and working
location stated in the valid work permit, the enterprise shall
apply for a re-issuance of the work permit. Currently, the new
regulations have added that in case an enterprise changes its name
without changing the enterprise code stated in the work permit, it
is also in the case of having to re-issue a work permit.
- To annul rights to grant licenses of Management boards
industrial parks and economic zones
Accordingly, from September 18, 2023, the effective date of the
new Decree, the new issuance, re-issuance, renewal, and revocation
of work permits and confirmation of foreign workers who are exempt
from work permits for foreigners working in industrial parks,
economic zones, will have no longer fall under the jurisdiction of
the Management boards industrial parks and economic zones. All
applications related to foreign workers will be handled by the
Ministry of Labor – War Invalids and Social Affairs or the
Department of Labor – War Invalids and Social Affairs in each
case.
In addition to the important new points mentioned above, Decree
70/2023/ND-CP also adjusts several contents related to the copy
format for passports, proving documents for some positions that
foreign workers are expected to work, as well as instructions on
how to implement some documents related to work permits that have
been submitted before the effective date of Decree
70/2023/ND-CP.
Time of writing: 21/09/2023
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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