Thông tư 08/2008/TT-BLDTBXH

CIRCULAR

PROVIDING GUIDELINES FOR IMPLEMENTATION OF DECREE 34/2008/ND-CP OF THE GOVERNMENT DATED 25 MARCH 2008 ON EMPLOYMENT AND ADMINISTRATION OF FOREIGNERS WORKING IN VIETNAM

In implementation of Decree 34/2008/ND-CP of the Government dated 25 March 2008 ["Decree 34"] on employment and administration of foreigners working in Vietnam, the Ministry of Labour, War Invalids and Social Affairs ["Ministry of Labour"] hereby provides the following guidelines:

I. GOVERNING SCOPE AND APPLICABLE ENTITIES

The governing scope and applicable entities of this Circular are foreigners working in Vietnam and enterprises and organizations in Vietnam which employ foreigners as stipulated in article 1 of Decree 34 and specifically as follows:

1. Foreigners working in Vietnam in the following forms:

 (a) A foreigner working pursuant to a labour contract with an enterprise or organization in Vietnam in accordance with the labour law of Vietnam;

 (b) A foreigner transferring internally within an enterprise which has a commercial presence in Vietnam;

 (c) A foreigner performing any of the following types of contract, namely economic, commercial, financial, banking, insurance, scientific and technical, cultural, sporting, educational or medical health contracts;

 (d) A foreigner being a service provider pursuant to a contract;

 (dd) A foreigner offering services;

 (e) A foreigner representing a foreign non-Governmental organization which is permitted to operate pursuant to the law of Vietnam.

The above foreigners working in Vietnam are all hereinafter referred to as foreigners.

2. Enterprises and organizations employing foreign employees, comprising:

 (a) Enterprises operating pursuant to the Law on Enterprises [and/or] the Law on Investment, comprising:

- A State company operating pursuant to the 2003 Law on Enterprises and now continuing to operate pursuant to article 166 of the Law on Enterprises dated 29 November 2005.

- A limited liability company, shareholding company, private enterprise or partnership which was established pursuant to the 1999 Law on Enterprises and which now continues to operate pursuant to article 170.1 of the Law on Enterprises dated 29 November 2005.

- An enterprise with foreign owned capital which was issued with an investment licence pursuant to the Law on Foreign Investment in Vietnam, including:

+ A joint venture enterprise;

+ An enterprise with 100% foreign owned capital;

+ A shareholding company with foreign owned capital established pursuant to Decree 38/2003/ND-CP of the Government dated 15 April 2003 on conversion of a number of enterprises with foreign owned capital to operate in the form of shareholding companies;

+ An investment project in the form of a business co-operation contract which was issued with an investment licence or investment certificate pursuant to the Law on Foreign Investment in Vietnam.

 (b) Foreign contractors (head contractors and sub-contractors) awarded with a contract in

Vietnam;

 (c) Representative offices and branches of economic, commercial, financial, banking, insurance, scientific and technical, cultural, sporting, educational, and medical health organizations;

 (d) Socio-political, socio-occupational-political, social, and socio-occupational organizations; and non-Governmental organizations;

 (dd) State professional units;

 (e) Medical health, cultural, educational and sporting establishments (including establishments operating pursuant to the Law on Enterprises [and/or] the Law on Investment), including:

- A sporting establishment established and operating pursuant to the law on sports and physical training;

- An educational, training or vocational [occupational] training school, centre or establishment established and operating pursuant to the law on education, training, vocational training and labour;

- A hospital, institute with patient beds, medical centre, medical health station, centre for prevention and control of social diseases, preventive medicine centre, treatment clinic or any other medical health establishment established and operating pursuant to the medical health law of Vietnam;

- A cultural establishment established and operating pursuant to the law of Vietnam.

 (g) Offices of foreign or international projects in Vietnam;

 (h) Operating offices of foreign partners pursuant to business co-operation contracts in Vietnam;

 (i) Organizations practising law in Vietnam in accordance with the law of Vietnam;

(k) Co-operatives and co-operative groups established and operating pursuant to the Law on Co- operatives.

The above enterprises and organizations are all hereinafter referred to as employers.

II. EMPLOYMENT AND ADMINISTRATION OF FOREIGNERS WORKING IN VIETNAM

1. An application file to register the proposed recruitment of a foreigner as stipulated in article 4.2 of Decree 34 shall contain the following:

 (a) Application form1 to register his or her proposed recruitment by a foreigner on standard Form 1 issued with this Circular.

 (b) Legal [or justice] record issued by the authorized body of the country where the foreigner resided prior to coming to Vietnam. If the foreigner has currently resided in Vietnam for six (6) months or more, then there need only be a legal record issued by the Department of Justice of the province or city where the foreigner is residing.

 (c) Curriculum vita of the foreigner on standard Form 2 issued with this Circular, with a photo of the foreigner attached.

 (d) Health certificate issued overseas or health certificate issued in Vietnam in accordance with the regulations of the Ministry of Health.

 (dd) Copies of certificates of specialist [or] highly technical qualifications of the foreigner including university degree, master's degree or doctorate appropriate for the specialization and work required by the employer.

A foreigner who is an artisan in a traditional occupation or trade or who has experience in an occupation or trade or in operating production or in managerial work and who does not possess certificates or diplomas recognizing same, must have a document from the authorized body of the foreign country certifying that he or she has at least five years' experience in such occupation or trade, in operating production or in managerial work, and which is appropriate for the work required by the employer.

A soccer player must have a list setting out all the soccer clubs with which he has played, or a certificate from the last club with which he played.

 (e) Three colour photos (3cm by 4cm in size, bareheaded, frontal view, showing the face and ears clearly, without glasses, and on a white background) taken within the last six (6) months from the date on which the foreigner lodges the application file.

2. The time-limit within which the employer must publish its need to recruit employee/s as stipulated in article 4.4(a) of Decree 34 shall be regulated as follows:

The time-limit of at least thirty (30) days prior to recruiting employees means 30 western calendar days, for example if an employer proposes to employ a foreigner as from 5 May 2008, then the notice on recruitment of employee/s must be provided prior to 5 April 2008.

3. Signing a labour contract as stipulated in article 4.4(d) of Decree 34 shall be regulated as follows:

After the foreigner is issued with a work permit, the employer and the foreigner must sign a written labour contract in accordance with the labour law of Vietnam, and within a time-limit of five business days of the signing the employer shall forward a copy of the signed labour contract to the body which issued the work permit for such employee.

4. Notice of a foreigner entering Vietnam to offer services as stipulated in article 7 of Decree 34 shall be regulated as follows:

Any foreigner entering Vietnam to offer services must provide at least seven (7) business days' advance written notice regarding offering of services (by directly delivering the notice or by sending it via the post office, by fax or so forth) to the Department of Labour in the locality where the foreigner proposes to offer services, and the notice must specify the full name, age, nationality and passport number of the foreigner, the dates of commencing and finishing work, and the specific work which the foreigner will carry out.

For example if the foreigner proposes to enter Vietnam to offer services in the province of Hai Duong as from 16 May 2008, such foreigner must ensure that his or her notice is received by the Department of Labour prior to 7 May 2008.

5. The standard form of a work permit as stipulated in article 9.2 of Decree 34 shall be regulated as follows:

 (a) The format of a work permit

A work permit shall measure 13cm x 7cm in size, shall comprise 4 pages of which pages 1 and 4 shall be light blue plastic, and pages 2 and 3 shall have a white background with a light blue pattern and the form of a star imprinted in the middle.

 (b) A work permit shall contain the contents set out on standard Form 3 issued with this Circular.

 (c) The Employment Division under the Ministry of Labour shall arrange the uniform printing and distribution of work permits.

6. An application file for the issuance of a work permit as stipulated in article 9.3, in the order stipulated in article 9.5 of Decree 34, shall be regulated as follows:

 (a) The application file for the issuance of a work permit [shall comprise]:

- Letter from the employer or Vietnamese party requesting issuance of a work permit, on standard Form 4 issued with this Circular.

- The application file to register the proposed recruitment of a foreigner as stipulated in clause 1 of Section II of this Circular.

The application file for the issuance of a work permit for a foreigner transferring internally within an enterprise as stipulated in article 1.1(b) of Decree 34 need not contain an application form [Form I] but instead must have a written letter from the foreign enterprise appointing such foreigner to come to Vietnam to work at the commercial presence of such foreign enterprise within the territory of Vietnam, and specifying how long the foreigner has already been employed by the foreign enterprise.

The application file for the issuance of a work permit for a foreigner as stipulated in article 1.1(c) and (d) of Decree 342 need not contain an application form [Form I] but instead must have a contract signed between the Vietnamese party and the foreign party.

The application file for the issuance of a work permit for a foreigner as stipulated in article 1.1(e) of Decree 343 need not contain an application form [Form I] but instead must have a certificate from the foreign non-Governmental organization [confirming it] is permitted to operate in accordance with the law of Vietnam.

All the documents prescribed above must be translated into Vietnamese and notarized.

 (b) Order for issuance of a work permit

- At least twenty (20) business days prior to the date on which it is proposed the foreigner will commence work at the enterprise, body or organization in Vietnam, the employer or the Vietnamese party must lodge one set of the application file for the issuance of a work permit with the Department of Labour in the province or city where such foreigner will regularly work.

- If the foreigner will regularly work for the entire duration of his or her employment at a city or province other than that in which the employer or the Vietnamese party has its head office, then the application file must be lodged with the Department of Labour in such other city or province.

- The Department of Labour shall issue a work permit for the foreigner within fifteen (15) business days from the date of receipt of a complete and valid application file. In a case of refusal to issue a work permit, there must be a written explanation of the reasons for same.

 (c) Receipt and handover of the work permit

The employer or the Vietnamese party shall be responsible to receive the work permit issued by the Department of Labour, and then to hand it to the foreigner.

7. The application file and order for the issuance of a work permit for a foreigner who has been issued with a work permit which is currently valid and who wishes to sign another labour contract with another employer as stipulated in article 9.5(c) of Decree 34 shall be regulated as follows:

 (a) The application file for the issuance of a work permit [shall comprise]:

- Request from the employer or Vietnamese party for issuance of a work permit, on standard Form 4 issued with this Circular.

- The documents stipulated in clause 1(a) and (dd) of Section II of this Circular.

- Three colour photos (3cm by 4cm in size, bareheaded, frontal view, showing the face and ears clearly, without glasses, and on a white background) taken within the last six (6) months from the date on which the foreigner4 lodges the application file.

- Copy work permit (which is currently valid).

 (b) The order for issuance of the work permit shall be as stipulated in clause 6(b) of Section II of this Circular.

 (c) Receipt and handover of the work permit shall be as stipulated in clause 6(c) of Section II of this Circular.

8. The application file and order for extension of a work permit as stipulated in article 10 of Decree 34 shall be regulated as follows:

 (a) The application file for extension of a work permit [shall comprise]:

- Letter from the employer or Vietnamese party requesting extension of the work permit, on standard Form 5 issued with this Circular.

- Copy labour contract which must be certified by the employer, or copy contract signed between the Vietnamese party and the foreign party.

- Work permit already issued by the competent body to such foreigner.

 (b) Order for extension of a work permit

- At least thirty (30) western calendar days prior to the date of expiry of the work permit, the employer or the Vietnamese party must lodge an application file for extension of the work permit with the Department of Labour which issued such work permit.

- The employer or the Vietnamese party shall be responsible to lodge one set of the application file for extension of the work permit with the Department of Labour which issued the work permit.

- The Department of Labour shall grant an extension of the work permit within fifteen (15) business days from the date of receipt of a complete application file. In a case of refusal to extend the work permit, there must be a written explanation of the reasons for the refusal.

 (c) Receipt and handover of the work permit shall be as stipulated in clause 6(c) of Section II of this Circular.

9. The application file and order for re-issuance of a work permit [which was lost or damaged] as stipulated in article 11 of Decree 34 shall be regulated as follows:

 (a) The application file for re-issuance of a work permit [shall contain]:

- Request from the foreigner on standard Form 6 issued with this Circular.

- Letter from the employer or Vietnamese party requesting re-issuance of the work permit, on standard Form 7 issued with this Circular.

- The damaged work permit, or if the work permit was lost then a written explanation of the loss as stipulated in clause 9(b) below.

- Three colour photos (3cm by 4cm in size, bareheaded, frontal view, showing the face and ears clearly, without glasses, and on a white background) taken within the last six (6) months from the date on which the foreigner lodges the application file.

 (b) Order for re-issuance of a work permit

- The foreigner must provide a written notice to his or her employer or to the Vietnamese party, explaining clearly the circumstances in which the work permit was lost or damaged, within three business days from the date on which the foreigner discovers that his or her work permit has been lost or damaged.

- The employer or the Vietnamese party must, within thirty (30) western calendar days from the date on which the work permit was lost or damaged, lodge an application file for re-issuance of the work permit with the Department of Labour which issued such work permit.

 (c) Receipt and handover of a re-issued work permit shall be as stipulated in clause 6(c) of Section II of this Circular.

10. The spreadsheet list of foreigner/s as stipulated in article 9.6 of Decree 34 shall be regulated as follows:

With respect to foreigner/s working in Vietnam not required to have work permit/s pursuant to article 9.1 of Decree 34, the employer or Vietnamese party must provide a report on standard Form 8 issued with this Circular and enclosing the documents of the foreigner/s prescribed in article 9.6 of Decree 34, to the Department of Labour in the locality where the employer or Vietnamese party has its head office.

If the foreigner/s will regularly work for the entire duration of his/her/their employment in a different city or province from that in which the employer or Vietnamese party has its head office, then the above-mentioned list of foreigner/s shall be lodged with the Department of Labour in the city or province where the foreigner/s will regularly work.

11. Notice about a foreigner going to work in [a different] location5 as stipulated in article 13.3 of Decree 34 shall be regulated as follows:

If a foreigner goes to work for a period of ten (10) or more consecutive days or for a total of thirty (30) accumulated days within any one year in a province or city under central authority other than the province or city in which the foreigner works on a regular basis, then the employer or the Vietnamese party must provide written notice about the foreigner going to work in such location. The notice must specify the full name, age, nationality, passport number and issued work permit number of the foreigner, the dates of commencing and finishing work, the work which the foreigner will carry out, and the working location; and the notice must enclose a photocopy of the issued work permit, and be sent to the Department of Labour in the place where the foreigner will go to work.

12. The spreadsheet list of foreigner/s working in Vietnam6 as stipulated in article 20.1 of Decree 34 shall be regulated as follows:

A wife or husband [spouse] as stipulated in article 20.1 of Decree 34 means the wife or husband of a foreigner working in a diplomatic representative office, foreign consulate, or foreign agency of an international organization belonging to the United Nations or of a regional or sub-regional organization.

The enterprise, organization or individual employing such foreigner/s must provide the report and list, on standard Form 8 issued with this Circular, seven (7) business days in advance, to the Department of Labour in the locality where the foreigner works.

III. ORGANIZATION OF IMPLEMENTATION

1. Responsibilities of Departments of Labour

 (a) To issue, extend and re-issue work permits in accordance with law. On receipt of an application file for issuance, extension or re-issuance of a work permit, to enter same in the register book and provide a receipt to the employer or Vietnamese party. The receipt shall record the day, month and year of receipt of the application file, the contents of the application file, and the time-limit within which a response will be provided.

 (b) To guide, check and inspect compliance with the law of Vietnam on employment and administration of foreigners working in Vietnam.

 (c) Prior to 15 January and 15 July each year, to report to the Ministry of Labour (Employment Division) on the status of issuance of work permits for foreigners working at enterprises, bodies and organizations within the locality managed by such Department, on standard Form 10 with this Circular.

2. Responsibilities of employers and Vietnamese parties in Vietnam

 (a) To comply fully with the law of Vietnam on employment and administration of foreigners working in Vietnam.

 (b) Prior to 5 January and 5 July each year, to provide a report on the status of their employment of foreigners in the initial 6 months of the year and for the whole of the previous year respectively, to the Department of Labour in the locality where such enterprise or organization has its head office or regularly operates, on standard Form 9 issued with this Circular. They shall also provide extraordinary [random or one-off] reports on the status of their employing foreigners, at the request of the State administrative body for labour.

(c) To pay fees for the issuance, extension or re-issuance of work permits in accordance with regulations of the people's council of the province or city under central authority.

3. Effectiveness

This Circular shall be of full force and effect after fifteen (15) days from the date of its publication in the Official Gazette.

This Circular shall replace Circular 04/2004/TT-BLDTBXH of the Ministry of Labour dated 10 March 2004 providing guidelines on a number of articles of Decree 105/2003/ND-CP of the Government dated 17 September 2003 regarding employment and administration of foreigners working in Vietnam; and Circular 24/2005/TT-BLDTBXH of the Ministry of Labour dated 26 September 2005 amending the above- mentioned Circular 04.

If any problems arise during implementation, they should be reported to the Ministry of Labour for resolution.

LIST OF FORMS
(Issued with Circular 08/2008/TT-BLDTBXH of the Ministry of Labour dated 10 June 2008)