What are the conditions for recruiting foreign workers?

by DangKhoi

In Vietnamese law, the conditions for recruiting foreign workers are very detailed. There are many legal and compliance procedures that need to be understood and implemented when foreigners are recruited in Vietnam. What are the conditions for recruiting foreign workers? Let’s find out in this article with LSX Law firm.

  • Code Labor 2012
  • Decree 11/2016/ND-CP 
  • Circular No. 40/2016/TT-BLDTBXH

1. So, is it possible to recruit labor foreign workers?

Article 170 of the Labor Code 2012 detailed about domestic enterprises, agencies, organizations, individuals, and contractors want to recruit foreign workers:

“Article 170. Conditions for recruitment of workers with nationalities of other countries

Firstly, domestic enterprises, agencies, organizations, individuals, and contractors may only recruit foreign workers to do managerial jobs, executive directors, experts, and technical workers where Vietnamese workers have not been able to meet the needs of production and business.

Secondly, foreign enterprises, agencies, organizations, individuals, and contractors, before recruiting foreign nationals to work in the Vietnamese territory, must explain their demand for labor use and obtain the written approval of a competent state agency”.

Accordingly, domestic enterprises, agencies, organizations, individuals, and contractors have the right to hire foreign workers but must satisfy the requirements and conditions as prescribed by law. At the same time, The competent state agency shall carry out and approve the explanation procedures.

2. Conditions for recruiting foreign workers

Regarding the conditions for recruiting foreign workers to work in Vietnam, the law clearly stipulates:

  • So, Only foreign workers can be recruited to do management work, executives, experts and technical workers” if Vietnamese workers have not yet met the production and business needs. That means, when there Vietnamese workers who can do the job, you can’t hire foreign workers.
  • Also, An explanation of the needs for foreign workers must be made and it must be agreed in writing by a competent Vietnamese agency.

Thus, according to regulations, enterprises can only recruit foreign workers when domestic workers cannot meet the demand with the above-mentioned nature of work.

In addition, according to Clause 1, Article 2 of Decree 11/2016 ND-CP clarifies more regulations on foreign citizens working in Vietnam in the following forms:

  • Performance of labor contracts;
  • Moving within the enterprise;
  • Performing all kinds of contracts or agreements on economy, commerce, finance, banking, insurance, science and technology, culture, sports, education, vocational education, and health;
  • Contracted service providers;
  • Offering services;
  • Working for a foreign non-governmental organization or an international organization in Vietnam that is permitted to operate in accordance with Vietnamese law;
  • Volunteers;
  • Person responsible for establishing a commercial presence;
  • Managers, executives, experts, technical workers;
  • Participating in the implementation of bidding packages and projects in Vietnam.

3. Procedures and explanations for recruiting foreign workers

Pursuant to Decree No. 11/2016/ND-CP guiding the Labor Code effective April 1, 2016 and Circular No. 40/2016/ TT-BLD-TB&XH takes effect on 12/12/2016 guiding foreign workers working in Vietnam:

Step 1: Procedures for explaining labor demand

At least 30 days in advance from the expected date of the employment of foreign workers, enterprises must send a written report explaining their use needs to the approving agency where the foreigner works or the local employer

Step 2: Procedures for applying for a license work permit for employees

New application for work permit for foreign workers working in Vietnam

  • Health certificate issued abroad or in Vietnam according to regulations of the Ministry of Health
  • Documents certifying that he is not a criminal or being examined for penal liability in accordance with Vietnamese and foreign laws
  • Degrees
  •  Documents certifying work experience in the country abroad for a position in Vietnam.
  • 03 photos (4×6 international, portrait, face and ears are fully visible, no glasses, white background), photos must not be older than 06 months by the time of application
  • A certified copy of the entire passport

Note: You must translate and notarize the documents if it’s in a foreign language in accordance with the law of Vietnam. Additionally, the copy can’t be 6 months old.

Also, Persons wishing to recruit foreign workers shall submit a dossier to the Ministry of Labor, War Invalids and Social Affairs which is the state agency competent to issue work permits to foreigners.

4. Other considerations

In addition, according to Article 172 of the Labor Code and Clause 2, Article 7 of Decree 11/2016 ND-CP stipulates the following cases of exemption from work permits:

  • Being a capital contributor or owner of the company limited liability.
  • Being a member of the Board of Directors of a joint-stock company.
  • As Head of representative offices and projects of international organizations and non-governmental organizations in Vietnam.
  • Enter Vietnam with a term of fewer than 3 months to make a service offer.
  • Entering Vietnam with a term of fewer than 3 months to handle problems, technical situations, complex technologies that arise, affecting or potentially affecting production and business that Vietnamese experts and the Foreign experts currently in Vietnam cannot handle.
  • Being a foreign lawyer with a license to practice law in Vietnam in accordance with the Law on Lawyers.
  • According to the provisions of international treaties to which the Socialist Republic of Vietnam is a signatory.
  • As students, students studying in Vietnam to work in Vietnam, but the employer must notify 07 days in advance to the provincial state management agency in charge of labor.
  • Other cases as prescribed by the Government.

Thus, for the above cases, there is no need to carry out the procedure to apply for a work permit.

Hope this article is useful for you, If you need any further information, please contact LSX Law Firm: 0833102102

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