Since the beginning of 2020 until now, Vietnam has been affected greatly by the Covid-19 epidemic. When the epidemic was out of control, the entry of foreign investors, experts, and workers was strictly checked and could only be allowed in a few highly necessary cases.
Currently, Vietnam has controlled the epidemic and removed restrictions on foreign workers. However, the procedure for applying for Work Permits (“WP”) for foreign workers still has some notable problems. Accordingly, BLawyers Vietnam will update some practical notes on this topic.
1. Process of obtaining the WP
In accordance with the law, to apply for a WP for a foreign worker, an employer in Vietnam must carry out 02 steps as follows:
(i) Step 1: The employer applies for approval of the demand for foreign workers
At least 30 days before the date on which foreign workers are expected to start working, the employer needs to report their demand of recruiting foreign workers to the Ministry of Labor, War Invalids and Social Affairs (“MOLISA”) or the provincial People’s Committee.
After the dossier as required by the law is submitted, MOLISA or the provincial People’s Committee issue a document to approve or disapprove the demand for recruiting foreign workers within 10 working days from the date of receiving the report.
(ii) Step 2: The employer applies for the WP
At least 15 working days before the date the foreign worker is expected to start working in Vietnam, the employer submits a dossier to the Department of Labor, War Invalids and Social Affairs (“DOLISA”) where the foreign worker is expected to work.
Within 05 working days from the date of receipt of complete dossiers of application for a WP, MOLISA or DOLISA where the worker plans to work, issue a WP to the foreign worker. In case of refusal to issue a WP, these authorities must reply in writing and clearly state the reason.
2. Practical notes on the procedure of obtaining WP in the post-Covid-19 period
(i) Note No. 1: The processing time for the application for a WP is prolonged
The application processing time limit is prolonged compared to the time limit prescribed by the law for the following reasons:
- Increase in the number of cases to be processed
Currently, the competent authorities are receiving many WP applications after the epidemic is controlled. Besides, the demand for using foreign workers in Vietnam is also increasing day by day. Therefore, the number of dossiers handled by competent authorities is being “overloaded”, leading to a prolonged and congested processing time for WP applications. In some cases, the processing time may be longer from 01-02 months compared to the previous regulations.
In addition, the delay and prolonged time limit for processing the records by the competent authorities are not informed by a specific, direct approach to the people who submit the dossier. Thus, they must continuously check the status of their online application to update the deadline for returning the results of their application.
- Limitations on submitting all documents in the online form when the Online Public Service Portal has not been completed
The transfer of the entire procedure for issuance of WP to the online form through an electronic portal and an online public service portal has been applied to all in recent times. This shows the progress of the Vietnamese Government in trying to handle administrative procedures quickly and conveniently. However, the utilities and functions on these websites are still incomplete and are in the development and completion stage, leading to a longer processing time if additional documents are required as requested by a competent official.
(ii) Note No. 2: Requirement for a detailed explanation of the need to recruit foreign workers instead of the Vietnamese workers
Per the current Labor Code, enterprises, agencies, organizations, individuals, and contractors are only allowed to recruit foreign workers to work as managers, executives, experts, and technical workers that Vietnamese workers could not fulfill the needs of production and business. However, the Vietnamese Government still encourages foreign investors and skilled foreign workers to enter the Vietnamese labor market according to the needs of employers.
However, in the post-Covid-19 period, with the policy to encourage businesses in Vietnam to use Vietnamese workers, employers must explain in detail and specifically about the need to recruit foreign workers instead of Vietnamese. Accordingly, the employer may be required to provide additional reasons for recruiting foreign workers, the recruitment process for Vietnamese workers (which has failed), and the plan to replace foreign workers with Vietnamese workers after the expiration of the employment license term, etc.
Readers can refer to the specific requirements that need to be explained when recruiting foreign workers in the article: Is Vietnam tightening the recruitment and employment of foreign workers? (blawyersvn.com).
(iii) Note No. 3: Updating the information on certificates, licenses and documents of the enterprise before applying for a WP
Before applying for a WP, the employer should update/ adjust all information about the employer and/or foreign workers on the certificates, permits, and documents to be submitted to the licensing authority. Although the process of applying for a WP is separate from the procedures for applying for other licenses of the enterprise, the employer should note and update/adjust their certificates and permits to avoid the processing time for the WP dossier being prolonged.
A specific case is that a foreign worker is the legal representative of an enterprise that has been granted a new passport abroad but has not updated that passport information on the enterprise’s business registration certificate. The licensing authority refused to consider and process the application and required the employer to update the information on the enterprise registration certificate.
Date: 30 December 2022
Writer: Quang Nguyen
Maybe you want to read: