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Intra-company transferees
INTRA-COMPANY TRANSFEREES means a manager, executive
director, expert or technician of a foreign enterprise which has established a
commercial presence within the territory of Vietnam who temporarily transfers
internally within the enterprise to the commercial presence within the territory
of Vietnam and who was employed by the foreign enterprise at least twelve
(12) months prior to such transfer. Art. 3.1 Decree 102
Employees who fit this category and within the scope of the List of
Commitments on Services of Vietnam with WTO are EXEMPTED from the
work permit requirement in Vietnam.
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11 sectors covered under Vietnam’s WTO Commitments are as follows:
1. Business Services;
2. Communications services;
3. Construction and related engineering services;
4. Distribution services;
5. Educational services;
6. Environmental services;
7. Financial services;
8. Health related and social services;
9. Tourism and travel related services;
10. Recreation, cultural and sporting services; and
11. Transport services.
VIETNAM’S WTO SPECIFIC COMMITMENTS
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Please note that Vietnam’s WTO Specific Commitments does not cover all sub-
sectors in each of these general sectors. Under Article 7.2 of Decree 102, work
permit exemption shall only be applicable to intra-corporate transferees in sub-
sectors listed under these 11 general sectors in the Specific Commitments. Take
“construction and related engineering services” for example:
The Specific Commitments only covers services under group 51 (construction
work) of the Provisional Central Product Classification (CPC). Construction and
related engineering services under group 52 (Constructions), including civil
engineering works (such as construction of highways, bridges, water ways,
constructions for mining and manufacture), and group 53 (land) are not
covered. Consequently, an intra-corporate transferee working for a construction
company wholly specialized in civil engineering works is not exempt from work
permit under Decree 102.
However…
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INTRA-CORPORATE TRANSFEREES working for companies operating
in service sectors NOT included in the Vietnam’s WTO Specific Commitments
or performing pure production and manufacturing (except for some processing
companies) are, in principle, NOT EXEMPT from work permit requirements.
Conclusion
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Exception
Does a General Manager need to obtain work permit for the General
Manager position itself when CONCURRENTLY holding another
position which does NOT require a work permit (“WP”)?
It remains to be seen as unclear language and no practical precedent based on
new laws so far.
However, previously MOLISA appeared to flexibly handle this case by indicating
that an expatriate who holds 02 positions at the same time (i.e. – one subjecting
to WP and the other not) is NOT required to seek any WPs. Given the languages
of the old Labor Code and the new one are the same, it may be possible to
approach the MOLISA for the same “indication” on an ad-hoc basis.
MOLISA = Ministry of Labor, Invalids and Social Affairs
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• VISA for a foreigner: only issued after work permit or re-issuance of work
permit or after they have LODGED COMPLETE APPLICATION files for
issuance or re-issuance of work permits;
• Foreigners working in Vietnam without work permits or applications for
work permits shall be EXPELLED from Vietnam. Namely, WITHIN 15
BUSINESS DAYS after confirming that a foreigner is working in Vietnam
without a work permit, DOLISA shall request the public security [police] office
to expel such foreigner.
Notes
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Annual plan
New regulations now require APPROVAL from the Chairman of
the provincial People’s Committee regarding the ANNUAL demand
for foreign employment.
This approval must be submitted with the work permit application.
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No more extension of work permit
The maximum term of a work permit is now TWO YEARS
(previously three years) depending, among other factors, on the
length of the labor contract, letter of appointment, and validity
of the passport.
Work permit can NO longer be extended. RE-ISSUANCE is
required instead since November 2013.
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WORK PERMIT APPLICATION UNDER NEW REGULATIONS
Work
permit
First time Reissuance
Filing
period
At least 15 business days before
commencing work in Vietnam
5 to 15 days before current permit
expires
Issuance
time
10 business days 3 business days
Term Maximum 2 years Maximum 2 years
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WORK PERMIT APPLICATION UNDER NEW REGULATIONS
Work permit First time Reissuance
Documents
- Issuance request form
- 2 photos
- Health Certificate
- People's Committee approval
- Appointment letter
- Passport
- Criminal record
- Documents certifying that the
foreigner is a manager, director,
technician or specialist
- Other supporting documents
depending on the form of
employment
- Reissuance request form
- 2 photos
- Health Certificate
- People's Committee approval
- Appointment letter
- (Passport only in case of material
changes or if previous permit is lost)
Labor
contract
To be submitted after the work
permit is issued and within 5
business days after signing
To be submitted after the work permit
is issued and within 5 business days
after signing
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NEW CIRCULAR 03
ON WORK PERMIT
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New Circular 03 on work permit for foreign employees has
been adopted by the Ministry of Labor, Invalids and Social
Affairs on 20 January 2014 and come into effect on 10
March 2014.
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Plan for hiring foreign employees
Requires approval from DOLISA
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DOLISA = Department of Labor, Invalids and Social Affairs
New regulations highlights
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Criminal record
1. For Employee who has never resided in Vietnam
A Criminal Clearance from the foreign competent
authority where the Employee resides within 06
months prior to the application date.
2. For Employee who is residing in Vietnam
(i) A Criminal Clearance from the foreign competent
authority; AND
(ii) A Criminal Record issued by the provincial
Department of Justice where the Employee is
residing.
3. For Employee who had resided in Vietnam before
A Criminal Record issued by the National Center of
Criminal Records of Vietnam.
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New regulations highlights
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Work permits can no longer
be extended (re-issuance is
required)
Employers who employ
foreigners are no longer
obliged to train Vietnamese
citizens to replace the
Foreign employees
New regulations highlights
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Re-issuance in case of change of working location
If the foreign employee is transferred, full-time, to a branch,
representative office or other establishment of the employer within the
same province or city, an entirely new work permit is required.
New regulations highlights
Although not absolutely clear, it can be
understood that if the foreign employee is
transferred, full-time, to a branch,
representative office or other establishment
of the employer in different province with
that stated in his/her work permit, re-
issuance is also required.
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A specialist needs
(i) a document proving that he/she is a
foreign engineers/ bachelors that have
worked at least 05 years in their fields
and suitable for the positions he/she is
supposed to hold in Vietnam; or
(ii) a document recognized by the foreign
authorities certifying that he/she is a
specialist.
New regulations highlights
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Certifying that a foreign national is exempt from work permit:
The employer has to request DOLISA to certify that a foreign
national is exempt from work permit then DOLISA shall certify or
reject to certify this request.
New regulations highlights
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DOLISA = Department of Labor, Invalids and Social Affairs
1
• Demand for hiring foreigners must be submitted to at
least 30 days before commencing work
• DOLISA shall issue approval within 15 days
2
• Submit work permit application
• DOLISA shall “consider” within 10 days
3
• Receive work permit
(total time required: theoretically, 25 days)
Work Permit Application (First Time)
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RECOMMENDATIONS
• Thorough understanding of
labor law as well as its guiding
regulations
• Be aware of different practice of
different DOLISAs and labor
authorities
• Carefully remember the number
of days remaining on your work
permits)
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DUANE MORRIS VIETNAM LLC
THANK YOU!
HANOI HO CHI MINH CITY
Pacific Place, 13th Floor, Suite 1308 Suite 1503/04, Saigon Tower
83B Ly Thuong Kiet 29 Le Duan, District 1
Hanoi, Vietnam Ho Chi Minh City, Vietnam
Tel.: +84 4 946 1310-14 Tel.: +848 38 240 240
Fax: +84 4 946 1311 Fax: +848 38 240 241
Contact email: omassmann@duanemorris.com
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