Cases of exemption from work permits and procedures for confirming the need to employ foreign workers

For foreign workers to engage in employment within Vietnam, a work permit is typically required. However, in some cases, this permit will be exempted or reduced, so that it is easier for businesses to use foreign employees, especially Foreign direct investment (FDI enterprises).

Work permit: is a document issued by a competent Vietnamese state agency to foreigners to work in the territory of Vietnam.
Foreign workers (foreign workers) working in Vietnam are not subject to a work permit: these are cases where foreign workers are exempted from applying for a work permit to work in Vietnam. This is determined for each foreign employee.
Using foreign employee needs: Before applying for a work permit or requesting confirmation that foreign workers are not subject to work permit requirements, businesses need to seek approval from the state labor management agency (Ministry/Department of Labor, War Invalids, and Social Affairs) for using foreign labor. All job positions have to follow this process.

However, in some cases, businesses are exempt from determining the need for foreign labor.

Relevant legal Documents to read:

1. Labor Code (Article 154)
2. Decree No. 152/2020/ND-CP regulating foreign workers working in Vietnam – Article 4, Article 7.
3. Decree No. 70/2023/ND-CP amending Decree 152/2020

Common cases where employees will be exempted from work permit (not subject to work permit):

1. Be an owner or capital-contributing member of a limited liability company with capital contribution value of 3 billion VND or more.
2. Be the Chairman or member of the Board of Directors of a joint stock company with a capital contribution value of 3 billion VND or more.
3. Be the Head of a representative office, or project or be primarily responsible for the activities of international organizations and foreign non-governmental organizations in Vietnam.
4. Enter Vietnam for less than 03 months to provide services.
5. Entering Vietnam for less than 03 months to handle problems, complex technical and technological situations that arise that affect or have the risk of affecting production and business that experts in Vietnam cannot be processed.
6. Enter Vietnam to work as a manager, executive director, expert or technical worker with a working period of less than 30 days and no more than 03 times in 01 year.
7. Internal mobility of enterprises in 11 service industries, including: business, information, construction, distribution, education, environment, finance, healthcare, tourism, culture, entertainment and transportation load.
8. Individuals responsible for establishing a commercial presence (such as representative offices, branches of foreign traders, etc.).
9. Entering Vietnam to provide some services under ODA programs and projects.
10. Foreigners marry Vietnamese and live in Vietnamese territory.

In addition, there are some rare cases such as: Relatives of staff of foreign representatives in Vietnam; working under an official passport; foreign journalists granted licenses to operate information and journalism in Vietnam; Foreign lawyers are licensed to practice law in Vietnam; Volunteers work in Vietnam voluntarily and without salary to implement international treaties; Pupils and students studying at schools and training facilities abroad have internship agreements with agencies, organizations and businesses in Vietnam; interns and apprentices on Vietnamese ships; Cases of entering Vietnam to implement international agreements signed by agencies and organizations at the provincial levels or higher; cases following agreements of international conventions that Vietnam has participated in…

How to determine if an employee is not eligible for a Labor License?

For cases 01, 02, 04, 06: Before the foreign employee works for at least 3 days, the enterprise must report to the Ministry or Department of Labor, War Invalids and Social Affairs about the foreign employee, including full name, age, nationality. nationality, passport number, name of foreign employer, start date and end date of employment.

For cases 03, 05, 07, 08, 09, 10: Before the foreign employee works at least 10 days, the enterprise must send a request including the following documents to the Ministry or Department of Labor, War Invalids, Society:

1. Written request to confirm that foreign workers are not subject to a work permit according to Form No. 09/PLI;
2. Health certificate or health examination certificate as prescribed;
3. Document approving the need to employ foreign workers (except for exempt cases);
4. Certified copy of valid passport;
5. Documents to prove that foreign workers are not subject to a work permit;

The above documents (excluding Form 09/PLI) must be submitted as either originals or certified copies. If from a foreign country, they must be consularly legalized, translated into Vietnamese and authenticated according to regulations (except for cases where exempt from consular legalization according to Vietnam’s treaties with other countries).

Within 05 working days from the date of receiving complete documents, the Ministry or the Department of Labor, War Invalids and Social Affairs will issue a written confirmation that they are not eligible for a work permit. If not confirmed, a written response will be issued with the clear reasons provided.

In some cases, businesses will not have to go through procedures to confirm their need to use foreign workers:

1. Be an owner or capital contributing member of a limited liability company with a capital contribution value of 3 billion VND or more.
2. Be the Chairman or member of the Board of Directors of a joint stock company with capital contribution value of 3 billion VND or more.
3. Be the Head of a representative office, project or have main responsibility for the activities of international organizations and foreign non-governmental organizations in Vietnam.
4. Enter Vietnam for less than 03 months to offer services.
5. Entering Vietnam for less than 03 months to handle problems, complex technical and technological situations that arise that affect or have the risk of affecting production and business that experts in Vietnam cannot handle.
6. Individuals responsible for establishing commercial presence (such as representative offices, branches of foreign traders…)
7. Enterprises need to pay attention to determine whether their foreign employees are required to apply for a Work License, or are exempt from certifying the need to use foreign workers to carry out the procedures and avoid causing waste properly. waste of time and effort.

Should you have any questions, please do not hesitate to contact An Luat Vietnam. Our company, with a team of experienced lawyers and consultants, will advise customers to complete all documents and procedures related to work permits; Ensuring legal safety and legitimate interests for all customer activities.