Q1 – Cases of work permit exemption
There are a number of cases of work permit exemption under Labor Code 2019 and Government’s Decree 152/2020/NĐ-CP dated 30 December 2020 (Decree 152).
We would like to generally summarize as below. We are pleased to comment and advise on a case by case basis subject to the comprehensive review of your specific circumstance.
| Circumstances of work permit exemption
|
Legal basis | |
| 1 | Owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion dong | Article 154.1 Labor Code 2019 and Article 7.1 Decree 152 |
| 2 | Chairperson or a member of the Board of Directors of a joint-stock company a capital contribution value of at least 3 billion dong
|
Article 154.2 Labor Code 2019 and Article 7.2 Decree 152 |
| 3 | Manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam
|
Article 154.3 Labor Code 2019 |
| 4 | Entering Vietnam for a period of less than 03 months to do marketing of a service.
|
Article 154.4 Labor Code 2019 |
| 5 | Entering Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.
|
Article 154.5 Labor Code 2019 |
| 6 | A foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.
|
Article 154.6 Labor Code 2019 |
| 7 | In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.
|
Article 154.7 Labor Code 2019 |
| 8 | Getting married with a Vietnamese citizen and wishes to reside in Vietnam.
|
Article 154.8 Labor Code 2019 |
| 9 | An intra-company transferee within 11 sectors in the schedule of commitments in services between Vietnam and WTO, including: business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health services, tourism services, recreational and cultural services, and transport services.
|
Article 7.3 Decree 152 |
| 10 | Entering Vietnam to provide professional and engineering consulting services or perform other tasks intended for research, formulation, appraisal, supervision, evaluation, management and execution of programs and projects using official development assistance (ODA) in accordance with regulations or agreement in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries.
|
Article 7.4 Decree 152 |
| 11 | Granted with a communication and journalism practicing certificate in Vietnam by the Ministry of Foreign Affairs as per the law.
|
Article 7.5 Decree 152 |
| 12 | Sent by a foreign competent authority or organization to Vietnam to teach and study at an international school under management of a foreign diplomatic mission or the United Nations; or of a facility established under an agreement to which Vietnam is a signatory.
|
Article 7.6 Decree 152 |
| 13 | A volunteer as specified as an unpaid foreign worker who voluntarily works in Vietnam to implement an international treaty to which the Socialist Republic of Vietnam is a signatory with certification of a foreign diplomatic mission or international organization in Vietnam.
|
Article 3.2 and Article 7.7 Decree 152 |
| 14 | Entering Vietnam to hold the position of a manager, executive, expert or technical worker for a period of work of less than 30 days and up to 3 times a year.
|
Article 7.8 Decree 152 |
| 15 | Entering Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law.
|
Article 7.9 Decree 152 |
| 16 | Student studying at a foreign school or training institution which has a probation agreement with an agency, organization or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship.
|
Article 7.10 Decree 152 |
| 17 | A relative of a member of foreign representative body in Vietnam
|
Article 7.11 Decree 152 |
| 18 | Obtaining an official passport to work for a regulatory agency, political organization, or socio-political organization.
|
Article 7.12 Decree 152 |
| 19 | Being in charge of establishing a Vietnam-based commercial presence.
|
Article 7.13 Decree 152 |
| 20 | Certified by the Ministry of Education and Training as a foreign worker entering Vietnam for teaching and research purpose. | Article 7.14 Decree 152 |
Q2 – How to get work permit exemption certificate in Vietnam
We would like to summarize the step by step procedure to obtain a work permit exemption certificate as below.
| Step 1 | Obtaining Pre-Approval of demand on employing foreign employees
|
– Must be done at least 30 days before the expat’s commencement date.
– The employer shall prepare the registration form for its demand on using foreign workers and submit the same with provincial PC/ DOLISA.
|
| Step 2 | Preparing and submitting documents for applying for work permit exemption certificate | Application preparation:
– Request form for confirming the foreign employee is eligible for work permit exemption (Form 09/PLI as appendix 1 of the Decree 152); – Original or certified copy of Vietnam health check; or certified translation of the legalized health check if issued abroad; – Original or certified copy of Pre-Approval of Demand on using foreign employees (obtained in step 1), if required; – Certified copy of valid passport; – Proof of eligibility for work permit exemption (01 original or 01 certified copy. Documents issued in foreign countries should be legalized and translated into Vietnamese and in accordance with regulations of Vietnam). Application submission: – Must be submitted to MOLISA or DOLISA at least 10 days before the expat’s commencement date. |
| Step 3 | Receiving Result | – After 5 working days of receiving full valid documents, MOLISA/ DOLISA shall issue a work permit exemption certificate or reject to issue the work permit exemption certificate with express reasons of rejection.
– Validity of a work permit exemption certificate is up to 2 years. |
Note: There exist a couple of circumstance where a work permit exemption certificate is not required, e.g. an expat getting married with a Vietnamese citizen and wishes to reside in Vietnam. Should it be the case, the employer’s sole obligation is to submit a notice to DOLISA on the candidate description at least 3 days before the expat’s commencement date.
Q3 – If a foreigner is investor, how to get investor visa in Vietnam. please inform required documents and process.
Pursuant to the Law on Entry, Exit, Transit, and Residence of Foreigners in Vietnam, dated 14 June 2014 (as amended and supplemented from time to time), there are four (4) types of Investor Visa in Vietnam:
| Types
|
Validity | Requirements | Benefits | |
| 1 | Visa ĐT1 | Maximum 5 years | – Issued to foreign investors in Vietnam and representatives of foreign organizations investing in Vietnam and contributing capital of VND 100 billion or more or investing in business lines benefitting from investment incentives, in administrative divisions benefitting from investment incentives decided by the Government. | – Apply for a Vietnam temporary card which is valid for up to 10 years,
– Sponsor their spouse/children to get Vietnam TT visa if their visa is symbolized as DT1, DT2 or DT3, and
– Extend the visa following this visa extension instruction.
|
| 2 | Visa ĐT2 | Maximum 5 years | – Issued to foreign investors in Vietnam and representatives of foreign organizations investing in Vietnam and contributing capital of VND 50 billion to less than VND 100 billion or investing in business lines benefitting from investment incentives treatment decided by the Government. | |
| 3 | Visa ĐT3 | Maximum 3 years | – Issued to foreign investors in Vietnam and representatives of foreign organizations investing in Vietnam and contributing capital of VND 3 billion to less than VND 50 billion. | |
| 4 | Visa ĐT4 | Maximum12 months | – Issued to foreign investors in Vietnam and representatives of foreign organizations investing in Vietnam and contributing capital of less than VND 3 billion. | N/A |
We would like to generally summarize the licensing process as below.
We are pleased to comment and advise on a case by case basis subject to the comprehensive review of your specific circumstance.
| INVESTOR RESIDING IN VIETNAM
|
INVESTOR NOT RESIDING IN VIETNAM |
| 1. Application preparation
– 01 notarized copy of business license and/or investment license – Written introduction of legal seal and signature of competent persons of the organization (NA16) – 01 notarized copy of Investment Certification – Original copy of a valid passport and a valid visa/temporary residence card – Application form for Vietnamese visa and temporary residence extension.
|
1. Application preparation
– Official Request for examining and approving foreigners entering the country (form NA2 as defined in Circular No.04/2015/TT-BCA dated 5 January 2015. – 01 notarized copy of business license and/or investment license – Written introduction of legal seal and signature of competent persons of the organization (NA16) – 01 copy of the Foreign Investor’s passport – 01 notarized copy of Investment Certification
|
| 2. Application submission
The documents then will be sent to one of the following addresses:
– Hanoi Immigration Authority: 44-46 Tran Phu Street, Ba Dinh District, Hanoi.
– Ho Chi Minh City Immigration Authority: 333-335-337 Nguyen Trai Street, District 1, HCMC
After that, the Investor shall receive a note on when to receive the result.
|
2. Application submission
The documents then will be sent to one of the following addresses:
– Hanoi Immigration Authority: 44-46 Tran Phu Street, Ba Dinh District, Hanoi.
– Ho Chi Minh City Immigration Authority: 333-335-337 Nguyen Trai Street, District 1, HCMC
The Investors’ Company shall scan the documents and send them to the foreign investors. The Investors then will need:
– a valid original passport with at least 2 blank pages. – 02 4×6 images of themselves – Copies of all the required documents as mentioned – Visa Application Form
After that, so as to earn the Investor Visa, depending on the foreign investors, the documents can be turned in at:
– Embassy/Consulate of the Socialist Republic of Vietnam, or – Registered Vietnam Entry border gate
The process would take place for approximately 5 working days since the Investors’ enterprise submits all the required documents.
|
Q4 – What to do after the issuance of work permit?
Employer and Expat to enter into Vietnam-law labor contract.
Term of labor contract must be in line with the term of the issued work permit.
The employer shall send the signed lab or contract to the competent authority that issued that work permit. The labor contract shall be the original copy or a certified true copy. Penalty of up to 6M VND (equivalent to US$ 250) shall apply in case of failure to follow this obligation.
Q5 – Is there an indefinite-term labor contract for expat employees?
Local employees: First fixed-term labor contract of up to 36 months -> Second fixed-term labor contract of up to 36 months -> Indefinite-term labor contract.
Expat employees: Multiple fixed term labor contracts. Term of labor contract must be in line with term of issued work permit.
Q6 – If the foreign investor is retired (> 60 years old), can he/she legally live in Vietnam by investor visa?
Yes.
The term ‘foreign investor’ as defined in clause 19 Article 3 of the Law on Investment dated 17 June 2020, are individual who are holding a foreign nationality or an organization established under foreign laws and carrying our business investment activities in Vietnam.
As far as our awareness, there are no statutory restriction on age of foreign investor. As such, a foreign individual investor who is beyond the statutory retirement age can legally reside in Vietnam provided that he/she manages to obtain (i) a validly effective investor visa or (ii) a validly effective temporary resident card (TRC) marked with symbol ‘ĐT’.
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Please do not hesitate to contact Dr. Oliver Massmann under omassmann@duanemorris.com if you have any questions or want to know more details on the above. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC.
