On September 18, 2023, the Vietnamese government issued Decree No. 70/2023/ND-CP (“Decree 70”) amending and supplementing certain provisions of Decree No. 152/2020/ND-CP (“Decree 152”), which regulates foreign workers working in Vietnam and the recruitment and management of Vietnamese workers working for foreign entities in Vietnam. While Decree 70 relaxes some conditions relating to foreign workers, the general goal of protecting and prioritizing domestic labor over foreign labor remains. The major changes introduced in Decree 70 are summarized below.
1. Amended Definitions and Requirements for Worker Classifications
Decree 70 introduces several changes to the requirements for foreign workers to be classified as “experts” and “technical workers.” Under Decree 152, foreign workers needed to hold bachelor’s degrees or receive training directly related to their intended job positions in Vietnam. However, under Decree 70, experts are only required to have a university degree or higher and at least three years of relevant work experience suitable for their intended positions in Vietnam.
Similarly, it is no longer necessary for technical workers to have training in a specific technical field to be eligible to work in Vietnam. Instead, a technical worker is defined as someone who has undergone at least one year of training and possesses at least three years of working experience suitable for their intended job position.
Additionally, Decree 70 clarifies and expands the scope of the term “executive director”. Accordingly, an executive director can be (i) the head of a branch, representative office, or business location of an enterprise (which helps clarify the previous definition of “executive director” in Decree 152); or (ii) an individual who oversees at least one field within an agency, organization, or enterprise while being under the direct supervision of the head of that agency, organization, or enterprise.
2. Application for Work Permit
The general procedure for work permit application under Decree 70 remains the same as under Decree 152, consisting of two steps:
Step 1: Approval of demand to use foreign labor
Under this step, employers must submit a report and explanation on their need to use foreign workers to the Ministry of Labor, Invalids and Social Affairs (MOLISA) or the Department of Labor, War Invalids and Social Affairs (DOLISA) of the province or city where the foreign workers are expected to work. Decree 70 has shortened the timeline for submitting this application for approval of demand to use foreign labor to a minimum of 15 days in advance of the foreigner commencing work, compared to 30 days under Decree 152.
Decree 70 also includes specific cases related to changing the demand to use foreign labor, which may arise in the course of employing foreign workers. These cases involve changes in the positions, job titles, work arrangements, quantities, and locations for which foreign workers are required.
Additionally, from January 1, 2024, if employers would like to recruit foreign workers for a certain position, they must first post a recruitment announcement seeking Vietnamese workers for that position on the online portal of MOLISA or the provincial-level employment service center at least 15 days before the expected date of applying for approval of demand to use foreign labor. The MOLISA and DOLISA have not provided clear guidance on this issue, so it is uncertain exactly what this obligation will entail. However, Decree 70 states that the recruitment announcement must include the position, job description, number of employees to be hired, qualification requirements, experience, salary, time, and location of work.
If the employer can establish that it was unable to recruit Vietnamese workers for the posted positions, it may then submit the application for approval of demand to use foreign labor.
Step 2: Application for work permit
For the work permit application, instead of the general provisions stated in Decree 152 as “Documents providing proof that the individual is a manager or an executive director”, Decree 70 specifically outlines three types of qualifying documents: (i) the company’s charter or the operating regulations of agencies, organizations, or enterprises; (ii) the enterprise registration certificate or certificate of establishment or establishment decision or other document of equivalent legal validity; (iii) resolutions or decisions on the appointment of agencies, organizations, or enterprises.
According to Decree 70, in addition to diplomas, certificates, or training certifications, experts and technical workers can use previously granted work permits or work permit exemption certificates as substitutes for the experience confirmation document issued by foreign agencies, organizations, or enterprises.
For expats who are experts or technicians and will continue working in the same position and job title after renewing their work permit, it is not necessary to resubmit all the documents from the initial work permit application dossier. Instead, they only need to submit the following documents: (i) application for the issuance of a work permit; (ii) health certificate; (iii) two color photos; (iv) approval of demand to use foreign labor; (v) certified copy of passport or copy of passport with confirmation from the employer; and (vi) certified copy of the issued and valid (previous) work permit. This means that the process of obtaining a new work permit after previously having a renewed work permit has become more straightforward.
If foreign workers work for an employer at multiple locations, the application for a work permit must list all the workplaces in the application.
3. Reissuance of Work Permit
Decree 70 lists additional types of information changes that will require reissuance of a work permit, including changes to full name, nationality, passport number, working location, or enterprise name (without changing the enterprise code).
The approval of demand to use foreign labor is no longer required to be submitted in this case.
4. Work Permit Exemptions
In addition to the list of cases for which foreign workers are exempted from applying for a work permit specified in Decree 152, Decree 70 amends and supplements the following circumstances: (i) foreigner sent to Vietnam by a competent foreign agency or organization to teach, or to act as a manager or executive director at an educational institution proposed to be established by foreign diplomatic missions or intergovernmental organizations in Vietnam; and (ii) foreigner confirmed by the Ministry of Education and Training to enter Vietnam to work as a manager, executive director, or principal at an educational institution proposed to be established by foreign diplomatic missions or intergovernmental organizations in Vietnam. Foreigners married to Vietnamese citizens are also now eligible for a work permit exemption certificate. Previously, many foreigners were on a dependent visa sponsored by their spouse, so would need to leave Vietnam every six months, which was very inconvenient.
5. Reporting Regime
If an expat works in many localities for the same employer, it is worth noting that the employers are obligated to file an online report to the MOLISA and the DOLISA within three working days from the start date of the expat’s working term.