I. Legal grounds
– Labor Code 2019
– Decree 152/2020/ND-CP
II. Confirmation content of the company
– The partner sends a Specialist (Had APEC Card) to Vietnam for the purpose of maintenance, maintenance, and technical advice for businesses during 3-4 days/times a year.
– The expert of the partner may not be a permanent person.
– The company currently wonders: Is the expert appointed from the partner required to apply for a Work Permit? What are the rules and procedures like?
- Answer content of VBP
– Cases of foreign workers who are exempt from work permits (Article 154 of Labor Code 2019):
“1. Owners or a capital contributing members of a limited liability company with a capital contribution value conformable with regulations of the Government.
- Chairperson or a member of the Board of Directors of a Joint-stock Company with a capital contribution value conformable to regulations of the Government.
- Heads of representative offices or projects or the main responsible person of international organizations or foreign non-governmental organizations in Vietnam.
- Entering Vietnam for a period of fewer than 03 months to undertake marketing of a service.
- Entering Vietnam for a period of fewer than 03 months to resolve complicated technical or technological problems that affect or risk affecting production and business activities that cannot be resolved by Vietnamese experts and foreign experts currently in Vietnam.
- Foreign lawyers that are granted a professional certificate in Vietnam in accordance with the Law on Lawyers.
- Cases in accordance with international treaties of which the Socialist Republic of Vietnam is a member.
- Foreign workers who marry a Vietnamese citizen and live in the territory of Vietnam.
- Other cases specified by the Government.”
– Detailed guidance on the case of foreign workers who are exempt from work permits at Article 7 of Decree 152/2020 /ND-CP:
“1. Owners or a capital contributing members of a limited liability company with a capital contribution value of at least 3 billion Vietnam dong.
- Chairperson or a member of the Board of Directors of a Joint-stock Company with a capital contribution value of at least 3 billion Vietnam dong.
- The 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.
- 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 agreements in international treaties on ODA signed between the competent authorities of Vietnam and foreign countries.
- Being granted a communication and journalism practicing certificate in Vietnam by the Ministry of Foreign Affairs as per the law.
- Being sent by a foreign competent authority or organization to Vietnam to teach and study at an international school under the management of a foreign diplomatic mission or the United Nations; or of a facility established under an agreement to which Vietnam is a signatory.
- Volunteers as specified in clause 2 Article 3 of this Decree.
- Entering Vietnam to hold the position of a manager, executive, expert, or technical worker for a period of work of fewer than 30 days and up to 3 times a year.
- Entering Vietnam to implement an international agreement to which central or provincial authority is a signatory as per the law
- Students who are 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.
- Relative of a member of a foreign representative in Vietnam as specified in point l clause 1 Article 2 of this Decree.
- Obtaining an official passport to work for a regulatory agency, political organization, or socio-political organization.
- Taking charge of establishing a commercial presence.
- Certified by the Ministry of Education and Training as a foreign worker entering Vietnam for teaching and research purpose.”
– For the following cases:
- Entering Vietnam for less than 3 months to make a service offering.
- Foreign lawyers who are granted a professional certificate in Vietnam in accordance with the Law on Lawyers.
- Foreign workers who marry a Vietnamese citizen and live in the territory of Vietnam.
- Owners or capital contributing members of a limited liability company with a capital contribution value of at least 3 billion Vietnam dong.
- Chairperson or a member of the Board of Directors of a Joint-stock Company with a capital contribution value of at least 3 billion Vietnam dong.
- Entering Vietnam to work as a manager, executive director, an expert or technical worker with a working period of fewer than 30 days and no more than 03 times a year.
- Relatives of members of foreign representative missions in Vietnam specified at Point l, Clause 1, Article 2 of Decree 152/2020.
According to the provisions of Article 8.2 of Decree 152/2020, the cases mentioned above will not have to implement the procedures to confirm that the foreign employee is not eligible for a work permit, but must report to the Ministry of Labor, War Invalids and Social Affairs or Department of Labors, Invalids and Social Affairs- where the foreign worker is expected to work information: full name, age, nationality, passport number, name of the foreign employer, start date and ending date at least 3 days from the date the foreign worker is expected to start working in Vietnam.
=> So, for the issue that the customer has questions about the case of an Expert sent from a partner to Vietnam to work will be one of the cases of foreign workers who are exempt from work permits as prescribed by Vietnamese law. But the enterprise must carry out reporting procedures to the Department of Labor, War Invalids, and Social Affairs where the foreign worker is expected to work at least 03 days from the date the foreign worker is expected to start working in Vietnam.
