In the post-Covid 19 period, Vietnam is implementing measures to recover the economy and eliminate limitations on foreign employees. This has generated opportunities for enterprises that have demand ofemploying highly specialized foreign employees. In practice, however, enterprises come across several difficulties and spend a significant amount time filing for work permit for foreign emplyees to be eligible to work in Vietnam.
Through this Podcast episode, BLawyers Vietnam woud like to present 3 practical points while carrying out procedures for applying for work permit for foreign employees in Vietnam.
Host
Hello listeners, welcome to The Lawyers Talk channel of BLawyers Vietnam.
Today we will talk with Lawyer Nguyen Thi Thuy Linh about applying for a Work Permit and what to prepare before applying to the licensing authority.
Guest
Hello everyone, my name is Thuy Linh, a lawyer from BLawyers Vietnam. Today on the podcast I would like to talk about my experiences in applying for a Work Permit for foreigners in Vietnam.
Host
Thank you, Linh for agreeing to participate in this podcast.
Through my research, I understood that submitting a work permit application is not difficult, but as a person working in this profession, could you please share general information and what the application needs?
✓ What documents are required?
✓ What are the conditions?
✓ How does the license application procedure work?
Guest
Thank you for your questions. To answer these questions, I would like to present 02 main issues, the first is the general procedure to obtain a Work Permit, and the second is what the Employer should consider while applying for a Work Permit.
1. The procedure for obtaining a Work Permit
According to the provisions of law, to apply for a work permit for foreign employees, employers in Vietnam (“Employer”) need to take 02 steps as follows:
Step 1: The Employer applies for approval of the demand for employment of foreign employees
According to regulations, at least 30 days before the expected date of employment of foreign employees, employers must send a report explaining the demand for employment of foreign employees to the Ministry of Labor, War Invalids and Social Affairs (“MOLISA”) or the provincial-level People’s Committee.
Following the submission of the dossier in accordance with regulations, MOLISA or the provincial-level People’s Committee will issue documents on the approval or disapproval of the employment of foreign employees for each job assignment. The document is issued within 10 working days of receiving the explanatory report.
Step 2: The Employer will submit an application for a Work Permit for the foreign employee
Accordingly, at least 15 working days before the date a foreign employee is expected to start working in Vietnam, the employer shall submit a dossier of application for a work permit to the Department of Labor, War Invalids and Social Affairs (“DOLISA”) where the foreign employee is expected to work.
Within 05 working days after receiving a complete dossier of application for a work permit, MOLISA or DOLISA where the foreign employee is expected to work shall issue a work permit to the foreign employee. In case of refusal to issue such a work permit, the authorities shall issue a written reply clearly stating the reason.
Host
After the COVID-19 pandemic, I wonder if there will be any changes in the procedure to submit and process Work Permit applications to state authorities?
Are there any difficulties in getting results, and if so, what should be noted? Please provide additional details, Lawyer Linh:
Guest
In practice, enterprises face many difficulties in applying for a work permit in the post-Covid-19 period. According to my experience, employers need to pay attention to the following issues:
(i) First: The processing time for a Work Permit application may be extended
The time limit for processing documents may be extended more than the legal time frame for the following reasons:
- The first reason is an increase in the number of cases to be resolved
Currently, competent agencies are receiving many applications for work permits after the pandemic was gradually controlled.
In addition, the demand for foreign employees in Vietnam is increasing. Therefore, the number of dossiers processed by competent agencies is in an “overloaded” state, leading to a prolonged processing time for Work Permit applications. In some cases, the processing time may be 1-2 months MORE compared to regulations.
In addition, the extension of the time limit for processing applications by the competent authorities may not be specifically and directly notified to the applicant. Therefore, applicants must continuously check the status of their applications online to update the deadline for returning their application results.
- The next reason is due to the limitation when transferring all applications to online submission while the National Public Service Portal remains under construction
The transfer of all procedures for granting work permits online by the National Public Service Portal was only recently implemented, demonstrating that the Vietnamese Government is attempting to resolve administrative operations more promptly and efficiently.
However, the utilities and functions on this portal are still incomplete and are in the stage of development and completion, leading to an extended application processing time if additional documents are needed as per the request of the in-charge official.
(ii) The second consideration is about the procedure that requests a more detailed explanation for the need to recruit employees instead of Vietnamese employees (“Vietnamese employees”)
According to the current Labor Code, enterprises, organizations, individuals, and contractors shall only employ foreigners to hold positions of managers, executive directors, specialists, and technical employees when Vietnamese employees cannot meet the requirements .
However, the Vietnamese Government still encourages foreign investors and highly skilled foreign employees to participate in the Vietnamese labor market according to the needs of employers.
However, in the post-Covid-19 period, with policies to encourage businesses in Vietnam to employ Vietnamese employees, employers must explain in more detail specifically the need to recruit foreign employees instead of recruiting Vietnamese employees.
In practice, employers may be required to explain the reasons for recruiting foreign employees, their process for recruitment of Vietnamese employees (which has failed), and a plan to replace foreign employees with Vietnamese employees after the end of the Work Permit term.
(iii) The third note is about updating the enterprise’s information on their licenses and documents before applying for a Work Permit
Although applying for a work permit is separate from other license processes of enterprises, employers need to pay attention and update and adjust their certificates and licenses to avoid lengthy processing of Work Permit applications.
A specific case is when a foreign employee is the legal representative of an enterprise that has been issued a new passport overseas but has not updated that passport information on the enterprise’s business registration certificate.
The licensing agency refused to consider and process the application and required the employer to update information on the business registration certificate.
(iv) Further note on the application form for the Work Permit
Currently, competent agencies have been digitizing administrative procedures by receiving online applications for work permits on the website.
All applications for work permits are being received online by the Department of Labor, Invalids and Social Affairs and considered for amendments and supplements, if any, before issuing the results.
However, the large number of applications for work permits submitted online has overloaded the electronic administrative-management system and prolonged the processing of applications.
Therefore, to overcome this situation, the Department of Labor, Invalids and Social Affairs has encouraged employers to submit paper documents directly at the same time as submitting online documents on the website.
Thus, if the employer simultaneously submits the application for a work permit online and submits the paper application directly, it will help to process the application more quickly.
(v) The last and especially important note is about preparing documents to apply for a Work Permit
Employers should pay attention to the following issues when preparing dossiers to apply for work permits for foreign employees:
a. Firstly, determining the correct job position and corresponding working form
To fully and accurately prepare dossiers to apply for work permits for foreign employees, employers need to pay attention to the correct determination of the employee’s job position (managers, executives, experts, technical employees) and corresponding working form.
According to regulations, each job position and corresponding form of work will require a different application composition.
Therefore, the correct determination by the employer will help prepare the application quickly and accurately as well as limit the need to resubmit the application from the beginning because of the wrong job position or working form.
b. Secondly, consular legalization of foreign documents for use in Vietnam
By law, if the composition of the application for a Work Permit for a foreign employee includes documents issued overseas, they must be consular legalized, translated into Vietnamese, and have a certified translation, unless for cases of consular exemption under international treaties to which Vietnam is a contracting party or as prescribed by law.
In many actual cases, if employers have not legalized documents issued overseas, have not translated them into Vietnamese, and have not certified the translation according to regulations, these documents will not be considered valid and DOLISA may refuse to accept the application.
Therefore, when preparing dossiers to apply for work permits for foreign employees, employers need to pay attention to this issue to prepare dossiers accordingly.
c. Thirdly, special attention to the validity period of foreign employees’ documents
The processing time may be extended, possibly leading to an expired time limit for the employee’s documents to apply for a Work Permit. For example, a criminal record certificate is valid for 6 months from the date of issuance to the date of application submission, and a health certificate is valid for 12 months from the date of signing the health conclusion to the date of application submission. Employers need to pay attention to this issue to avoid submitting these documents to DOLISA after the prescribed time limit has expired.
When these documents expire, foreign employees must prepare these documents again. This will waste time and costs for both employers and foreign employees. Therefore, employers need to monitor the application processing process to prepare appropriate and valid documents.
(vi) Finally, another special issue is sending labor contracts to the competent authority issuing the Work Permit
Employers should note that for foreign employees working under labor contracts after the foreign employee is granted a work permit, the employer and the foreign employee must sign a written labor contract before the foreign employee begins work for the employer.
After completing the signing of the labor contract, the employer shall send that labor contract to the competent authority issuing that work permit . The labor contract is the original or a certified true copy.
If the employer fails to send the signed labor contract to the competent authority, the employer will be fined from VND1,000,000 to VND3,000,000 . This fine applies to individual employers; the fine for organizational employers is 02 times the fine for individuals.
Host
There are so many things that enterprises need to pay attention to in the process of applying for a Work Permit for foreigners.
Thank you for spending time to provide us with detailed information and legal expertise. We hope that this knowledge will be helpful to our listeners.
The Lawyers Talk Podcast about the topic of Work Permits will stop here, and we thank you for your interest in listening. Goodbye and see you again in the next Podcast.
If you have any questions or concerns, please leave a comment below.
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Goodbye and see you again.
The above is not official advice from BLawyers Vietnam. If you have any questions or suggestions about the above, please contact us at consult@blawyersvn.com. We would love to hear from you.
Date: 28 September 2023
