From September 18, 2023, is time limit for determination of demand for foreign workers reduced to at least 15 days in Vietnam?

From September 18, 2023, is time limit for determination of demand for foreign workers reduced to at least 15 days in Vietnam?

On September 18, 2023, the Government issued Decree 70/2023/ND-CP amending and supplementing a number of articles of Decree 152/2020/ND-CP regulating the employment of foreign workers. jobs in Vietnam and recruitment and management of Vietnamese workers working for foreign organizations and individuals in Vietnam.

At Point a, Clause 1, Article 4 of Decree 152/2020/ND-CP, there are regulations on using foreign workers as follows:

Employment of foreign workers

1. Determination of demand for foreign workers

a) At least 30 days before the date on which foreign workers are expected to be employed, the employer (except contractor) shall determine the demand for foreign workers for every job position for which Vietnamese workers are underqualified and send a corresponding report to the Ministry of Labor, War Invalids and Social Affairs or the People’s Committee of province or central-affiliated city (hereinafter referred to as province) where the foreign workers are expected to work, using Form No. 01/PLI Appendix I hereto appended.

...

In Clause 2, Article 1 of Decree 70/2023/ND-CP, regulations on using foreign workers are amended as follows:

Employing foreign workers

1. Determination of demand for foreign workers

a) At least 15 days in advance from the expected date of using foreign workers, employers (except contractors) are responsible for determination of demand for foreign workers for each public position that the Vietnamese worker has not been able to meet and report and explain 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 according to Form No. 01 /PLI Appendix I issued with this Decree.

During the implementation process, if there is a change in the need to use foreign workers in terms of position, job title, form of work, quantity, and location, the employer must report to the Ministry of Labor and Trade. Military and Social Affairs or the Department of Labor, War Invalids and Social Affairs according to Form No. 02/PLI Appendix I issued with this Decree at least 15 days in advance from the expected date of employing foreign workers.

...

Thus, compared to Decree 152/2020/ND-CP, employers will be responsible for determination of demand for foreign workers at least 30 days in advance, from September 18, 2023, the deadline for determination of demand for foreign workers will be reduced to at least 15 days from the expected date of using foreign workers in Vietnam.

From September 18, 2023, which foreign workers will not be granted work permits in Vietnam?

In Article 7 of Decree 152/2020/ND-CP , amended and supplemented by Clause 4, Article 1 of Decree 70/2023/ND-CP, regulations on cases where foreign workers are not subject to work permits are as follows: 

Without regard to the cases in clauses 3, 4, 5, 6, 7 and 8 Article 154 of the Labor Code, a foreign worker is exempt from a work permit if:

1. He/she is the owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion dong.

2. He/she is the Chairperson or a member of the Board of Directors of a joint-stock company with a capital contribution value of at least 3 billion dong.

3. He/she is an intra-company transferee within 11 sectors in the schedule of commitments in services between Vietnam and WTO, including: business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health services, tourism services, recreational and cultural services, and transport services.

4. He/she enters Vietnam to provide professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using official development assistance (ODA) in accordance with regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries.

5. He/she is granted a communication and journalism practicing certificate in Vietnam by the Ministry of Foreign Affairs as per the law.

6. He/she is sent to Vietnam by a competent foreign agency or organization to teach or work as a manager or executive director at an educational institution nominated by a foreign diplomatic representative agency or intergovernmental organization in Vietnam; establishments and organizations established under international treaties that Vietnam has signed and participated in.

7. He/she is a volunteer as specified in clause 2 Article 3 of this Decree.

8. He/she enters Vietnam to hold the position of a manager, executive, expert or technical worker for a period of work of less than 30 days and up to 3 times a year.

9. He/she enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law

10. He/she is a student studying at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship.

11. He/she is a relative of a member of foreign representative body in Vietnam as specified in point l clause 1 Article 2 hereof.

12. He/she obtains an official passport to work for a regulatory agency, political organization, or socio-political organization.

13. He/she takes charge of establishing a commercial presence.

14. He/she is confirmed by the Ministry of Education and Training that foreign workers enter Vietnam to perform the following jobs:

a) Teaching and research;

b) Working as a manager, executive director, principal, or vice principal of an educational institution proposed to be established by a foreign diplomatic mission or intergovernmental organization in Vietnam.

Are there 06 additional cases of using foreign workers without need to determine employment needs from September 18, 2023 in Vietnam?

Clause 2, Article 1 of Decree 70/2023/ND-CP stipulates amendments and supplements to Article 4 of Decree 152/2020/ND-CP as follows:

Employment of foreign workers

1. Determination of demand for foreign workers

 

....

b) In the case of 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, the employer is not required to determine the need to employ foreign workers.

...

According to this Article, from September 15, 2023, cases where it is not necessary to determine the need to use foreign workers include 17 cases.

At Point b, Clause 1, Article 4 of Decree 152/2020/ND-CP stipulates cases where it is not necessary to determine the need to use foreign workers (before September 18, 2023) as follows:

Employing foreign workers

1. Determine the need to employ foreign workers

...

b) If the foreign worker falls under any case of clause 3, 4 and 5 Article 154 of the Labor Code and clauses 1, 2, 8, 9, 10, 11, 12 and 13 Article 7 of this Decree, the employer is not required to determine the demand for foreign workers.

...

According to the law, before September 18, 2023, there will be 11 cases where it is not necessary to determine the need to use foreign workers. From September 18, 2023, 06 additional cases have been added where it is not necessary to determine the need to use foreign workers, including:

02 more cases in Article 154 of the 2019 Labor Code:

(1) Be a foreign lawyer who has been granted a License to practice law in Vietnam according to the provisions of the 2006 Law on Lawyers.

(2) Foreigners married to Vietnamese people and living in Vietnamese territory.

04 additional cases in Article 7 of Decree 152/2020/ND-CP amended and supplemented by Clause 4, Article 1 of Decree 70/2023/ND-CP:

(3). He/she enters Vietnam to provide professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using official development assistance (ODA) in accordance with regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries.

(4) He/she is granted a communication and journalism practicing certificate in Vietnam by the Ministry of Foreign Affairs as per the law.

(5) He/she volunteers working in Vietnam voluntarily and without salary to implement international treaties to which the Socialist Republic of Vietnam is a member and with confirmation from foreign representative agencies foreign missions or international organizations in Vietnam.

(6) He/she is confirmed by the Ministry of Education and Training that foreign workers enter Vietnam to perform the following jobs:

a) Teaching and research;

b) Working as a manager, executive director, principal, or vice principal of an educational institution proposed to be established by a foreign diplomatic mission or intergovernmental organization in Vietnam.

Best regards!