From January 1, 2024, Foreign Workers Can Only Be Recruited If No Vietnamese Workers Are Available on the Portal of the Ministry of Labor, Invalids, and Social Affairs
From January 1, 2024, only when Vietnamese workers cannot be recruited via the Ministry of Labor, Invalids and Social Affairs' electronic portal can foreign workers be hired?
In Clause 2, Article 4 of Decree 152/2020/ND-CP as amended by Clause 2, Article 1 of Decree 70/2023/ND-CP, there are regulations on employing foreign labor as follows:
Employment of foreign workers
1. Determining the need for foreign workers
...
c) From January 1, 2024, the notification of recruitment of Vietnamese workers for positions intended for foreign workers recruitment shall be made on the electronic portal of the Ministry of Labor - Invalids and Social Affairs (Employment Department) or on the electronic portal of the Employment Service Center as decided by the Chairperson of the provincial-level People's Committee for at least 15 days from the expected date of reporting to the Ministry of Labor - Invalids and Social Affairs or the Department of Labor - Invalids and Social Affairs where the foreign worker is expected to work. The recruitment notice includes: position and job title, job description, quantity, requirements for qualifications, experience, salary, working time, and location. After failing to recruit Vietnamese workers for the positions requiring foreign workers, the employer shall determine the need for foreign workers per the provisions of Point a, Clause 1 of this Article.
Thus, from January 1, 2024, if the employer has notified the recruitment of Vietnamese workers for positions intended for foreign workers on the electronic portal of the Ministry of Labor - Invalids and Social Affairs but fails to recruit them, they can then recruit foreign workers for the positions that Vietnamese workers have not met.
From January 1, 2024, only when Vietnamese workers cannot be recruited via the Ministry of Labor, Invalids and Social Affairs' electronic portal can foreign workers be hired?
How many days does an employer have to report the use of foreign workers if the foreign workers work for one employer in multiple provinces or cities?
In Article 6 of Decree 152/2020/ND-CP, supplemented by Clause 3, Article 1 of Decree 70/2023/ND-CP, there are regulations on reporting the use of foreign workers as follows:
Reporting on the use of foreign workers
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3. In cases where foreign workers work for one employer in multiple provinces or centrally-governed cities, the employer must report electronically to the Ministry of Labor - Invalids and Social Affairs and the Department of Labor - Invalids and Social Affairs where the foreign worker comes to work within 3 working days from the date the foreign worker starts working, according to Form No. 17/PLI Appendix I issued with this Decree.
Thus, in cases where foreign workers work for one employer in multiple provinces or cities, the employer must report the use of foreign workers within 3 working days from the date the foreign worker starts working.
In which cases is the employer not required to determine the need for foreign workers?
In Clause 1, Article 4 of Decree 152/2020/ND-CP, as amended by Clause 2, Article 1 of Decree 70/2023/ND-CP, there are regulations on the cases in which employers are not required to determine the need for foreign workers as follows:
Employment of foreign workers
1. Determining the need for foreign workers
...
b) In the cases 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, the employer is not required to determine the need for foreign workers.
Thus, the employer is not required to determine the need for foreign workers in cases where foreign workers working in Vietnam are not subject to the issuance of work permits, including:
- Heads of representative offices, projects, or persons in charge of the main activities of international organizations, foreign non-governmental organizations in Vietnam.
- Coming to Vietnam for less than 3 months to offer services.
- Coming to Vietnam for less than 3 months to handle emergencies, technical or technological situations that arise and affect, or have the risk of affecting, production and business activities that Vietnamese and foreign experts currently in Vietnam cannot handle.
- Foreign lawyers granted a License to practice law in Vietnam in accordance with the Law on Lawyers 2006.
- Foreign workers married to Vietnamese nationals and residing in Vietnamese territory.
- Owners or members contributing capital to limited liability companies with contributed capital valued at 3 billion VND or more.
- Chairpersons or members of the Board of Directors of joint-stock companies with contributed capital valued at 3 billion VND or more.
- Coming to Vietnam to provide consulting services on professional or technical issues or to perform other tasks serving the implementation, management, evaluation, monitoring, and execution of programs or projects using official development assistance (ODA) as stipulated or agreed in international treaties on ODA signed between competent Vietnamese authorities and foreign authorities.
- Foreign journalists granted a license by the Ministry of Foreign Affairs to operate in information and press activities according to the law.
- Volunteers as specified in Clause 2, Article 3 of Decree 152/2020/ND-CP.
- Coming to Vietnam as managers, executive directors, experts, or technical workers working for less than 30 days and not more than 3 times a year.
- Coming to Vietnam to execute international agreements signed by central or provincial level agencies and organizations as per legal regulations.
- Foreign students studying at overseas universities and training institutions with internship agreements with agencies, organizations, or enterprises in Vietnam; trainees on Vietnamese ships.
- Family members of members of foreign representative offices in Vietnam, specified at Point l, Clause 1, Article 2 of Decree 152/2020/ND-CP.
- Holding a service passport to work for state agencies, political organizations, or socio-political organizations.
- Persons responsible for establishing a commercial presence.
- Confirmed by the Ministry of Education and Training to carry out tasks such as:
+ Teaching, researching;
+ Acting as managers, executive directors, principal or vice-principal in educational institutions at the request of diplomatic missions or intergovernmental organizations established in Vietnam.
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