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Decree No 11/2016/ND-CP, dated February 3, 2016, which details the implementation of granting of work permits to foreign nationals working in Viet Nam, 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 added additional definitions for other positions held by foreign employees.
Foreign employees are deemed as specialists when they satisfy one of the following requirements:
" When the said employee is in possession of a written document that verifies their position as a specialist of an office, organisation or enterprise overseas.
" When the said employee has a minimum of a university degree or a certificate of equivalent value, and no less than three years' experience working in a specialised 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 the Enterprise Law, and is the head or deputy head of an office or organisation;
" A chief executive officer is the leader who directly manages subordinate units of an office, organisation 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, with the cumulative period not exceeding 90 days in a year, are not required to apply for a work permit.
Regarding cases not subject to the granting of work permits, foreign nationals still need a confirmation to be issued by the Labour, War Invalids and Social Affairs Department. The duration of the said confirmation shall not exceed two years and complies with the term of certain situations. (Previous regulations did not include a 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 of the health conclusion, and being in full effect at the time of submission of the work permit application.
Furthermore, according to 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 living in Viet Nam shall need only the criminal record issued by the Viet Nam authority. The 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 is 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 Labour, 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 in 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 has now expired, as provided for in Article 174 of the Labour Law and wishing to continue working at the same position stated in the work permit;
" Having been granted a work permit as per the above-mentioned cases, based on the provisions of Decree No 102/2013/ND-CP.
E. Cases of work permit reissuance
According to Article 13 of Decree 11, work permits with at least five days' validity, but no more than 45 days, shall be re-issued (the previous regulation did not apply to this case). — PLF – LAW FIRM
PLF – LAW FIRM