Not all cases of foreign workers working in Vietnam are required to apply for a work permit, but there are cases that are exempt. Below are complete guidelines on the procedures for certification of foreign workers eligible for exemption from work permits.
Article table of contents
1. Cases in which the foreign workers are exempt from applying for the work permits
According to Article 172 of the Labor Code 2012 of Vietnam and Clause 2 Article 7 of Decree No. 11/2016/NĐ-CP amended by Clause 3 Article 11 of Decree No. 140/2018/NĐ-CP of Vietnam’s Government, cases in which the foreign workers are exempt from applying for the work permits include:
1. Capital-contributing members or owners of limited liability companies.
2. Members of the Board of Directors of joint-stock companies.
3. Chiefs of representative offices and directors of projects of international organizations or non-governmental organizations in Vietnam.
4. Those who stay in Vietnam for under 3 months to offer services for sale.
5. Those who stay in Vietnam for under 3 months to deal with complicated technical or technological problems that adversely impact or are at risk of exerting adverse impacts on production and business activities and these problems cannot be handled by Vietnamese and foreign experts who are currently in Vietnam.
6. Foreign lawyers possessing a professional practice license in Vietnam in accordance with the Law on Lawyers.
7. It is in accordance with a treaty to which Vietnam is a contracting party.
8. Those who are studying and working in Vietnam, provided that the employer shall notify their employment to the provincial-level state management agency of labor 7 days in advance.
9. The workers are internally reassigned in the companies which engage in 11 service industries in Vietnam's WTO commitments on services, including: business, communication, construction, distribution, education, environment, finance, health, tourism, culture, entertainment and transportation.
10. The workers enter Vietnam to provide professional and technical advisory services or perform other tasks serving the research, construction, appraisal, assessment, management and execution of programs and projects funded by ODA according to the International Treaties on ODA between the competent authorities of Vietnam and other countries.
11. The workers are issued with the licenses for the practice of communications or journalism in Vietnam by the Ministry of Foreign Affairs.
12. The workers are appointed by foreign agencies or organizations to teach or do research in international schools under the management of foreign diplomatic missions or international organizations in Vietnam or the workers are permitted to teach or do research in educational and training institutions in Vietnam by the Ministry of Education and Training.
13. The workers are volunteers who have obtained the certification of the foreign diplomatic missions or international organizations in Vietnam.
14. The workers enter Vietnam to hold the positions of experts, managers, chief executive officers or technicians for a period of under 30 days and an accumulated working period of under 90 days per year.
15. The workers enter Vietnam to implement international agreements to which central or provincial agencies and organizations are signatories in accordance with the law.
16. Students who are studying in schools or training institutions in foreign countries execute their practicum at agencies, organizations or companies in Vietnam upon agreements.
17. Relatives of members who are executing their functions in foreign missions in Vietnam and exempt from work permits under the international treaty to which the Socialist Republic of Vietnam is a signatory.
18. Workers are holders of Official Passports for working in state agencies, political organizations or sociopolitical organizations.
19. Other cases decided by the Prime Minister at the request of the Ministry of Labor, War Invalids and Social Affairs.
Notably, according to Clause 1 Article 3 of the Circular No. 35/2016/TT-BCT of the Ministry of of Industry and Trade of Vietnam, grounds for identification of foreign managers, chief executives and specialists who are eligible for work permit exemption and internally reassigned by enterprises operating within eleven service sectors specified in the Vietnam’s WTO commitments on services include:
- Foreign enterprises having their commercial presence in Vietnam;
- Commercial presences of foreign enterprises in Vietnam operating in services prescribed in Annex I attached to Circular No. 35/2016/TT-BCT;
- A foreign worker recruited by a foreign enterprise at least 12 months prior to reassignment to the commercial presence in Vietnam.
Moreover, according to Clause 2 Article 3 of the Circular No. 35/2016/TT-BCT, grounds for identification of foreign technicians who are eligible for work permit exemption and internally reassigned by enterprises operating within eleven service sectors specified in the Vietnam’s WTO commitments on services include:
- Foreign enterprises having their commercial presence in Vietnam;
- Commercial presences of foreign enterprises in Vietnam operating in services prescribed in Annex II attached hereto;
- A foreign worker recruited by a foreign enterprise at least 12 months prior to allocation to the commercial presence in Vietnam.
2. Application for the certification of exemption from work permit
According to Clause 3 Article 8 of Decree No. 11/2016/NĐ-CP of Vietnam’s Government, the application for the certification of exemption from work permit consists of:
1. The written request for the certification that the foreign workers are exempt from work permits;
2. Documents proving that the foreign workers are eligible for exemption from the work permit, to be specific:
- The foreign enterprise’s written document on worker reassignment to its commercial presence in Vietnam which specifies job positions, title and working time;
- Documentary evidence that the foreign worker is a specialist as stipulated in clause 2 Article 6 of the Circular No. 40/2016/TT- BLDTBXH dated October 25, 2016 by the Ministry of Labor, War Invalids and Social Affairs providing guideline for a number of Articles of the Decree No. 11/2016/NĐ-CP;
- Documentary evidence that the foreign worker is a technician as stipulated in clause 3 Article 6 of the Circular No. 40/2016/TT- BLĐTBXH;
- Documentary evidence that the foreign worker has been recruited by the foreign employer in at least 12 months prior to allocation to the commercial presence in Vietnam under clause 4 Article 6 of the Circular No. 40/2016/TT- BLĐTBXH;
- One of the following documentary evidence that the foreign enterprise’s commercial presence in Vietnam operates in one or some of eleven services as prescribed in Annex I attached hereto: the enterprise registration certificate or the equivalent, permit to establish the representative office and permit to establish the branch issued by a Vietnamese competent authority.
3. Documents proving that the foreign workers are eligible for exemption from the work permits include 01 photocopy of each kind enclosed with its original for comparison or 01 certified copy of each kind; the documents of foreigners are exempt from consular legalization but they must be translated into Vietnamese and authenticated in accordance with the Vietnam law.
4. Where to apply for work permit exemption
For enterprises located in industrial zones: Provincial management board of industrial parks where the enterprise is headquartered.
For enterprises with a regular head office: Department of Labor, War Invalids and Social Affairs.
Cases of non-governmental organizations, international organizations, associations, etc. as prescribed in Clause 1 Article 3 of Circular No. 40/2016/TT- BLĐTBXH: Employment Department - Ministry of Labor - Invalids and Social Affairs.
5. Time limit for processing work permit exemption
According to Article 8 of the Decree No. 11/2016/NĐ-CP of Vietnam’s Government, the employer shall request the Service of Labor, War Invalids and Social Affairs of the province where the planned working place of foreign workers is located to certify that such foreign workers are eligible for exemption from work permits at least 07 working days before the day on which they start to work.
However, the procedures for certification of foreign workers eligible for exemption from work permits shall not be carried out in the following cases:
- Those who stay in Vietnam for under 3 months to offer services for sale.
- Those who stay in Vietnam for under 3 months to deal with complicated technical or technological problems that adversely impact or are at risk of exerting adverse impacts on production and business activities and these problems cannot be handled by Vietnamese and foreign experts who are currently in Vietnam.
- The workers enter Vietnam to hold the positions of experts, managers, chief executive officers or technicians for a period of under 30 days and an accumulated working period of under 90 days per year.
- Relatives of members who are executing their functions in foreign missions in Vietnam and exempt from work permits under the international treaty to which the Socialist Republic of Vietnam is a signatory.
Within 03 working days from the day on which the sufficient application is received, the Service of Labor, War Invalids and Social Affairs shall send a written certification to the employer. A written response and explanation shall be provided if the certification is rejected.
Le Vy
