Chương II Nghị định 11/2016/NĐ-CP quy định chi tiết Bộ luật lao động lao động nước ngoài làm việc tại Việt Nam : Cấp giấy phép lao động, cấp lại giấy phép lao động, trục xuất người lao động nước ngoài không có giấy phép lao động

Chapter II

ISSUANCE AND REISSUANCE OF WORK PERMITS AND EXPULSION OF FOREIGN WORKERS WITHOUT WORK PERMITS

Section 1. DETERMINATION OF JOB POSITIONS AVAILABLE FOR FOREIGN WORKERS

Article 4. Employment of foreign workers

1. Determination of demand for foreign workers

a) The employer (except for contractors) shall determine the demand for foreign workers for every job position in which Vietnamese workers are incompetent and send reports to the Chairperson of the People’s Committee of the province or city directly under the Central Government (hereinafter referred to as the Provincial People’s Committee) where the planned working place of foreign workers is located. The employer shall send a report to the Chairperson of the Provincial People’s Committee if the demand for foreign workers is changed in the course of execution.

b) In the cases specified in Clause 4, 5 and 8 Article 172 of the Labor Code and point e, point h Clause 2 Article 7 herein, employers are not required to determine the demand for foreign workers if such foreign workers belong to. 

2. The Chairperson of the Provincial People’s Committee shall issue a written approval to the employer for the employment of foreign workers in each job position.

Article 5. Employment of foreign workers by contractors

1. Before recruiting foreign workers, the contractor shall specify the quantity, qualifications, professional capacity and experience of foreign workers that are needed for executing the contract in Vietnam and send written request for the recruitment of Vietnamese workers to the job positions available for foreign workers (enclosed with the investor’s certification) to the Chairperson of the Provincial People’s Committee where the contract is executed.

If the contractor wishes to change or increase the declared number of workers, the plan for changing or increasing demand for workers of such foreign contractor must be certified by the investor.

2. The Chairperson of the Provincial People’s Committee shall direct local agencies and organizations to introduce and supply Vietnamese workers to the contractor. If Vietnamese workers are not introduced or supplied to the contractor within 02 months from the day on which the written request for 500 Vietnamese workers or more is received, or within 01 month from the day on which the request for fewer than 500 Vietnamese workers is received, the Chairperson of the Provincial People’s Committee shall consider allowing the contractor to recruit foreign workers to hold the job positions in which Vietnamese recruit are incompetent.

3. The investor shall supervise and request the contractor to conform with the declaration of the employment of Vietnamese workers and foreign workers; provide guidance, urge and inspect the contractor’s compliance of the regulations on recruitment and employment of foreign workers in accordance with the Vietnam law; monitor and manage foreign workers to comply with the Vietnam law; send quarterly reports to Services of Labor, War Invalids and Social Affairs on the contractor’s recruitment, employment and management of foreign workers as regulated by the Ministry of Labor, War Invalids and Social Affairs.

4. Quarterly, Services of Labor, War Invalids and Social Affairs shall cooperate with the police services and relevant agencies in inspecting the compliance with the Vietnam law of the foreign workers working at local contracts.

Article 6. Report on employment of foreign workers

1. The Provincial People’s Committee shall submit annual reports or unscheduled reports to the Ministry of Labor, War Invalids and Social Affairs on demand for foreign workers, approval for demand for foreign workers and management of foreign workers working in the province. 

2. Every 06 months and every year, the Service of Labor, War Invalids and Social Affairs shall submit reports on foreign workers working in the province as regulated by the Ministry of Labor, War Invalids and Social Affairs.

Section 2. FOREIGN WORKERS EXEMPT FROM WORK PERMITS

Article 7. The cases in which the foreign workers are exempt from applying for the work permits

1. The foreign workers regulated in Clause 1, Clause 2, Clause 3, Clause 4, Clause 5, Clause 6, Clause 7 and Clause 8 Article 172 of the Labor Code.

2. Other cases in which the foreign workers are exempt from work permits, including:

a) The workers are internally reassigned in the companies which engage in 11 service industries in the Vietnam’s WTO commitments on services, including: business, communication, construction, distribution, education, environment, finance, health, tourism, culture, entertainment and transportation;

b) The workers enter Vietnam to provide professional and technical advisory services or perform other tasks serving the research, construction, appraisal, assessment, management and execution of programs and projects funded by ODA according to the International Treaties on ODA between the competent authorities of Vietnam and other countries;

c) The workers are issued with the licenses for the practice of communications or journalism in Vietnam by the Ministry of Foreign Affairs;

d) The workers are appointed by foreign agencies or organizations to teach or do research in international schools under the management of foreign diplomatic missions or international organizations in Vietnam or the workers are permitted to teach or do research in educational and training institutions in Vietnam by the Ministry of Education and Training;

dd) The workers are volunteers who have obtained the certification of the foreign diplomatic missions or international organizations in Vietnam;

e) The workers enter Vietnam to hold the positions of experts, managers, chief executive officers or technicians for a period of under 30 days and an accumulated working period of under 90 days per year;

g) The workers enter Vietnam to implement international agreements to which central or provincial agencies and organizations are signatories in accordance with the law;

h) Students who are studying in schools or training institutions in foreign countries execute their practicum at agencies, organizations or companies in Vietnam upon agreements;

i) Relatives of members who are executing their functions in foreign missions in Vietnam upon the approval of the Ministry of Foreign Affairs, unless otherwise stated in the International Treaties to which the Socialist Republic of Vietnam is a signatory;

k) Workers are holders of Official Passports for working in state agencies, political organizations or sociopolitical organizations;

l) Other cases decided by the Prime Minister at the request of the Ministry of Labor, War Invalids and Social Affairs.

Article 8. Certification of foreign workers eligible for exemption from work permits

1. Services of Labor, War Invalids and Social Affairs are authorized to grant certification to foreign workers eligible for exemption from work permits.

2. The employer shall request the Service of Labor, War Invalids and Social Affairs of the province where the planned working place of foreign workers is located to certify that such foreign workers are eligible for exemption from work permits at least 07 working days before the day on which they start to work, except for the cases stated in Clause 4 and Clause 5 Article 172 of the Labor Code and Point e Clause 2 Article 7 herein.

The duration of a certification of foreign worker’s eligibility for exemption from work permits is specified in Article 11 herein and shall not exceed 02 years.

3. The application for the certification of exemption from work permit consists of:

a) The written request for the certification that the foreign workers are exempt from work permits;

b) The list of foreign workers which specifies their full names, ages, genders, nationalities, passport numbers, staring and ending dates of employment and their job positions;

c) Documents proving that the foreign workers are eligible for exemption from the work permit;

d) Documents proving that the foreign workers are eligible for exemption from the work permits include 01 photocopy of each kind enclosed with its original for comparison or 01 certified copy of each kind; the documents of foreigners are exempt from consular legalization but they must be translated into Vietnamese and authenticated in accordance with the Vietnam law.

4. Within 03 working days from the day on which the sufficient application is received, the Service of Labor, War Invalids and Social Affairs shall send a written certification to the employer. A written response and explanation shall be provided if the certification is rejected.

Section 3. ISSUANCE OF WORK PERMITS

Article 9. Conditions for issuing the work permit

1. The worker is capable of civil acts as prescribed by law.

2. The worker’s health is fit for working.

3. The worker is a manager, chief executive officer, expert or technician.

4. The worker is not a criminal or liable to criminal prosecution in accordance with the Vietnam law and the foreign country’s law.

5. The employment of the foreign worker is approved in writing by a state competent authority.

Article 10. Application for the work permit

An application for the work permit consists of:

1. The written request for the work permit made by the employer in accordance with regulations of the Ministry of Labor, War Invalids and Social Affairs.

The health certificate or report on medical examination which is issued by the foreign or Vietnamese authorized health organizations or agencies and takes effect within 12 months from the signing date of conclusion of heath status to the date of application.

3. The criminal record or written certification that the foreign worker is not a criminal or liable to criminal prosecution issued by the foreign competent authority. If the foreign worker is a lawful resident in Vietnam, only the criminal record issued by the Vietnamese competent authority is required.

The criminal record or written certification that the foreign worker is not a criminal or liable to criminal prosecution must be issued within 06 months prior to the submission of the application.

4. The written certification that the worker is a manager, chief executive officer, expert or technician.

For some jobs and works, the written certification of the qualification of the foreign worker can be replaced with one of the following papers:

a) Certificate of recognition which is issued by the competent authority of the foreign country if the worker is an artist in the traditional professions;

b) The documents proving experience of foreign soccer players;

c) The pilot license issued by a Vietnam’s competent authority to the foreign pilot;

d) The license for airplane maintenance issued by a Vietnam’s competent authority to the foreign worker who works in airplane maintenance industry.

5. 02 color pictures (4cm x 6cm, white background, frontal face, bareheaded and no colorful glasses) that are taken within 06 months ahead of the date of application.

6. Certified copy of passport or a substitute for passport or other license for international travel which is unexpired in accordance with the law.

7. Documents related to the foreign workers include:

a) The foreign workers regulated in Point b Clause 1 Article 2 herein must have papers of the foreign enterprise showing that they are appoint to work at the commercial presence of such foreign enterprise in Vietnam and the papers proving that they have been employed by such foreign enterprise for at least 12 months before they are appointed to work in Vietnam;

b) The foreign workers regulated in Point c Clause 1 Article 2 herein must have contracts or agreements sign by the Vietnamese partner and the foreign partner, including the agreements on sending foreign workers to work in Vietnam;

c) The foreign workers regulated in Point d Clause 1 Article 2 herein must have service contracts signed by the Vietnamese partner and the foreign partner and the papers proving that the foreign workers have worked for the foreign enterprise without commercial presence in Vietnam for at least 02 years;

d) The foreign workers regulated in Point D Clause 1 Article 2 herein must have the papers made by the service provider proving that the foreign workers are appointed to Vietnam to negotiate the service supply;

dd) The foreign workers regulated in Point e Clause 1 Article 2 herein must have certificates issued by the foreign non-governmental organization or international organization that has been granted with operating license in accordance with the Vietnam law;

e) The foreign workers regulated in Point h Clause 1 Article 2 herein must have the paper made by the service provider who appoints such foreign workers to Vietnam to establish its commercial presence;

g) The foreign workers regulated in Point i Clause 1 Article 2 herein, who participate in the operation of the foreign enterprise that has established its commercial presence in Vietnam, must have papers proving the foreign workers’ eligibility to participate in operation of such foreign enterprise.

8. The application for the work permit in a certain special cases includes:

a) If the foreign worker who is the holder of an unexpired work permit wants to enter into the employment contract with another employer at the job position which is the same with that defined in his work permit in accordance with the law, the application for the work permit includes documents regulated in Clause 1, 5, 6 and 7 herein and the work permit or certified copy of the issued work permit;

b) If the foreign worker who is the holder of an unexpired work permit wants to hold another job position which is different from that defined in his work permit in accordance with the law but the employer is unchanged, the application for the work permit includes documents regulated in Clause 1, 4, 5, 6 and 7 herein and the work permit or certified copy of the issued work permit;

c) If the foreign worker whose work permit expires as regulated in Article 174 of the Labor Code wants to continue his employment at the job position which is the same with that defined in his work permit in accordance with the law, the application for the work permit includes documents regulated in Clause 1, 2, 3, 5, 6 and 7 herein and certificate of revocation of his work permit;

d) If the foreign workers regulated at Point a, b and c of this Clause have been issued with the work permits as regulated in the Government's Decree No. 102/2013/ND-CP dated September 05, 2013 on detailed regulations on implementing a number of articles of the Labor Code regarding foreign workers working in Vietnam, they must submit documents proving their eligibility as regulated in Clause 3 or Clause 4 or Clause 5 Article 3 herein.

9. Consular legalization and certification of documents

a) Documents regulated in Clause 2, 3 and 4 of this Article include 01 photocopy of each kind enclosed with its original for comparison or 01 certified copy of each kind.

If the above-mentioned documents are issued by foreign authorities, they must be applied for the consular legalization, except for cases of exemption from the consular legalization as regulated in the international treaties to which the Socialist Republic of Vietnam and relevant foreign country are signatories or in the principle of reciprocity or as regulated by the law; must be translated into Vietnamese and authenticated in accordance with the Vietnam law.

b) Documents regulated in Clause 7 of this Article include 01 photocopy of each kind enclosed with its original for comparison or 01 certified copy of each kind. If such documents are issued by foreign authorities, they are exempt from the consular legalization provided that they must be translated into Vietnamese and authenticated in accordance with the Vietnam law.

Article 11. Duration of the work permit

The duration of a work permit shall not exceed 02 years and is equal to one of the following durations:

1. The duration of the labor contract to be signed;

2. The duration of assignment in Vietnam decided by the foreign partner;

3. The duration of the contract or agreement signed by and between the Vietnamese partner and the foreign partner;

4. The duration of the service contract or agreement signed by and between the Vietnam partner and the foreign partner;

5. The duration stated in the paper made by the service provider who sends the foreign worker to Vietnam to negotiate the service supply;

6. The duration stated in the certificate of the foreign non-governmental organization or international organization that has been granted with operating license in accordance with the Vietnam law;

7. The duration stated in the paper made by the service provider who appoints the foreign workers to Vietnam to establish its commercial presence;

8. The duration stated in the paper proving the foreign worker’s eligibility to participate in the operation of a foreign enterprise that has established its commercial presence in Vietnam.

Article 12. Order for issuing the work permit

1. At least 15 working days before the day on which the foreign worker intends to start his employment, the employer shall submit the application for the work permit to the Service of Labor, War Invalids and Social Affairs of the province where the planned working place of the such foreign worker is located.

2. Within 07 working days from the day on which the sufficient application is received, the Service of Labor, War Invalids and Social Affairs shall issue the work permit to the foreign worker using the form provided by the Ministry of Labor, War Invalids and Social Affairs. A written response and explanation shall be provided if the work permit is not issued.

3. After the foreign worker mentioned in Point a Clause 1 Article 2 of this Decree is issued with the work permit, the employer and the foreign worker shall sign a written labor contract in accordance with the Vietnam law before the intended working day of such foreign worker.

Within 05 working days from the day on which the labor contract is signed, the employer shall send a copy of the signed labor contract to the Service of Labor, War Invalids and Social Affairs that issued such work permit.

Section 4. RE-ISSUANCE OF WORK PERMIT

Article 13. The cases in which the work permit is reissued

1. The unexpired work permit is lost, damaged or the contents stated in the issued work permit are changed, unless otherwise stated in Clause 8 Article 10 of this Decree.

2. The work permit is still valid from 05 to 45 days.

Article 14. Application for reissuance of the work permit

1. The written request for the reissuance of the work permit made by the employer in accordance with regulations of the Ministry of Labor, War Invalids and Social Affairs.

2. 02 color pictures (4cm x 6cm, white background, frontal face, bareheaded and no colorful glasses) that are taken within 06 months ahead of the date of application.

3. The issued work permit

a) If the work permit is lost as regulated in Clause 1 Article 13 of this Decree, certification which is issued by the communal police agency of Vietnam or the competent authority of foreign country in accordance with the law is required;

b) If the contents stated in the issued work permit are changed as regulated in Clause 1 Article 13 of this Decree, documents providing such change are required;

c) If the work permit is still valid from 05 to 45 days as regulated in Clause 2 Article 13 of this Decree, the health certificate or report on medical examination regulated in Clause 2 Article 10 of this Decree and one of documents regulated in Clause 7 Article 10 of this Decree are required;

d) If the foreign worker has been issued with the work permit as regulated in the Government's Decree No. 102/2013/ND-CP dated September 05, 2013 on detailed regulations on implementing a number of articles of the Labor Code regarding foreign workers working in Vietnam, documents proving his eligibility as regulated in Clause 3 or Clause 4 or Clause 5 Article 3 of this Decree are required.

4. Documents regulated in Clause 3 of this Article include 01 photocopy of each kind enclosed with its original for comparison or 01 certified copy of each kind; the documents issued by foreign authorities are exempt from consular legalization but they must be translated into Vietnamese and authenticated in accordance with the Vietnam law.

Article 15. Order for reissuing the work permit

1. If the work permit is re-issued upon the cases prescribed in Clause 2 Article 13 of this Decree, from 05 to 45 days before the work permit expires, the employer must submit the application for reissuance of the work permit to the Service of Labor, War Invalids and Social Affairs where the former work permit has been issued.

2. Within 03 working days from the day on which the sufficient application for reissuance of the work permit is received, the work permit shall be re-issued by the Service of Labor, War Invalids and Social Affairs. A written response and explanation shall be provided if the work permit is not re-issued.

3. After the foreign worker mentioned in Point a Clause 1 Article 2 of this Decree is re-issued with the work permit, the employer and such foreign worker shall sign a written labor contract in accordance with the labor law of Vietnam before the day on which the foreign worker intends to continue the employment with the employer.

Within 05 working days from the day on which the labor contract is signed, the employer shall send a copy of the signed labor contract to the Service of Labor, War Invalids and Social Affairs that re-issued such work permit.

Article 16. Duration of the reissued work permit

1. The duration of the work permit reissued in the cases prescribed in Clause 1 Article 13 of this Decree is equal to the duration of the issued work permit minus the period that the foreign worker has worked up to the day the application for the reissuance of the work permit is submitted.

2. The duration of the work permit reissued in the cases prescribed in Clause 2 Article 13 of this Decree shall follow the duration of one of the cases regulated in Article 11 of this Decree but not exceed 02 years.

Section 5. REVOCATION OF THE WORK PERMIT AND EXPULSION OF FOREIGN WORKER

Article 17. Revocation of the work permit

1. The work permit expires as regulated in Clause 1, 2, 3, 4, 5, 7 and 8 Article 174 of the Labor Code.

2. The work permit is revoked because the employer or the foreign worker fails in the compliance with regulations of this Decree.

3. Order for revoking the work permit

a) As for the cases prescribed in Clause 1 of this Article, the employee shall revoke the work permit of the foreign worker and submit to the Service of Labor, War Invalids and Social Affairs where such work permit is issued;

b) As for the cases prescribed in Clause 2 of this Article, the Director of the Service of Labor, War Invalids and Social Affairs where such work permit is issued shall make decision on revocation and send notice to the employer who shall revoke the work permit of the foreign worker and submit to the Service of Labor, War Invalids and Social Affairs;

c) The Service of Labor, War Invalids and Social Affairs shall send a certificate of having the work permit revoked to the employer.

4. The Ministry of Labor, War Invalids and Social Affairs provides in detailed for procedures for revoking the work permit.

Article 18. Expelling the foreign worker

1. The foreigner who works in Vietnam without the work permit or certificate of eligibility for exemption from the work permit as regulated in this Decree (hereinafter referred to as the foreign worker working in Vietnam without the work permit) shall be expelled in accordance with the Vietnam law.

2. The Service of Labor, War Invalids and Social Affairs shall request the police agency to expel the foreign worker working in Vietnam without the work permit.

If the organizations and individuals discover any foreign worker working in Vietnam without the work permit, it should be reported to the Service of Labor, War Invalids and Social Affairs where the working place of such worker is located.

3. Within 15 working days from the day on which the foreign worker is pronounced working in Vietnam without the work permit, the Service of Labor, War Invalids and Social Affairs shall request the police agency to expel such foreign worker.