VietNamNet Bridge - Decree No. 11/2016/ND-CP dated February 3rd 2016 detailing the implementation of granting work permits to foreign nationals working in Vietnam has replaced Decree No. 102/2013/ND-CP.

A.    Definitions of specialist, manager, and chief executive officer are clearly specified:

Apart from the current definitions regarding job positions, Decree 11/2016/ND-CP (Decree 11) has supplemented additional definitions for other positions held by foreign employees.

Foreign employees are deemed as specialists when theysatisfy one of the following requirements:

•    When said employee is in possession of a written document that verifies their position as a specialist of an office, organization or enterprise overseas.

•    When said employee has a minimum of a university degree or a certificate of equivalent value, and no less than 3 years experience working in a specialized field appropriate to his or her expected position in Viet Nam; other special cases shall be examined and decided by the Prime Minister.

In the event where foreign nationals are considered managers or chief executive officers:

•    A manager is the person who administrates an enterprise as prescribed in Clause 18 Article 4 of Enterprise Law, is the head or deputy head of an office or organization;

•    A chief executive officer is the leader who directly manages subordinate units of an office, organization or enterprise.

B.    Cases not subject to work permit are supplemented

Aside from cases stated in the previous regulations, as stated at Point e Clause 2 Article 7 of Decree 11, foreign nationals working in Viet Nam as specialists, managers, chief executive officers or technical workers for less than 30 days and the cumulative period does not exceed 90 days within 01 year are not required to apply for a work permit.

Regarding cases not subject to work permit granting, foreign nationals still need a confirmation issued by the Labour, War invalids and Social Affairs Department. The duration of said confirmation shall not exceed 02 years and complies with the term of certain situations. (Previous regulations did not include specific time limit)

C. Regulations concerning work permit applications are more clearly defined

According to Decree 11, health certificates must be valid for 12 months commencing from the date of signing health conclusion, and are still in full effect at the time of submitting work permit application.

Furthermore, in Article 10 of Decree 11, it is mandatory to include a criminal record or a written confirmation stating that the foreign national is not a criminal or under criminal liability in work permit applications. Foreign employees who reside in Viet Nam shall need only the criminal record issued by Viet Nam authority. Said documents are issued for no longer than six months from the issue date to the submission date.

Moreover, while it is compulsory to have documents proving that the foreigner is a manager, chief executive officer, specialist or technical worker, the Decree has yet to include any specific regulation regarding exactly what those documents are. Such generic information shall cause difficulties for Vietnamese enterprises and foreigners when fulfilling their obligations to the Labor, War Invalids and Social Affairs Department. According to previous provisions, only a written confirmation is required.

D. Work permit application in special cases

Compared to former provisions, Decree 11 has supplemented Clause 8 Article 10 detailing dossiers in special cases as follows:

•    Working for another employer at the same position stated in the work permit while the permit is still valid;

•    Working for the same employer at a position different from what is stated in the work permit while the permit is still valid;

•    Having been granted a work permit that now expires as provided for in Article 174 of Labour Law and wishing to continue working at the same position stated in the work permit;

•    Having been granted a work permit following the above-mentioned cases based on the provisions of Decree No. 102/2013/ND-CP.

E. Cases of work permit reissuance

In Article 13 of Decree 11, Work permits with at least 5 days of validity but no more than 45 days shall be re-granted (the previous regulation does not regulatethis case).

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