Learn about foreign workers moving internally within the enterprise

Pursuant to Clause 1, Article 3 of Decree 152/2020/ND-CP stipulates “Foreign workers moving within an enterprise are managers, executives, experts and technical workers of a foreign enterprise that has established a commercial presence in the territory of Vietnam, moving temporarily within an enterprise to have a commercial presence in the territory of Vietnam and have been previously employed by a foreign enterprise for at least 12 consecutive months.”

From the above regulations, the criteria to be considered a foreign worker moving internally within an enterprise include:
- Foreign workers are managers, executives, experts and technical workers of foreign enterprises.
- Foreign enterprises have commercial presence in Vietnam in one of the following forms: economic organizations with foreign investment capital.
- Representative offices and branches of foreign traders in Vietnam.
- Executive office of foreign investor in business cooperation contract.
- Foreign workers temporarily moving within an enterprise to a commercial presence in the territory of Vietnam.
- Foreign workers have been recruited by foreign enterprises for at least 12 consecutive months.

Do foreign workers moving internally have to apply for a work permit? Documents, order and procedures for implementation?

- Foreign workers moving internally do not have to apply for a work permit when falling within the scope of 11 service industries in Vietnam's service commitment schedule with the World Trade Organization including: business, information, construction, distribution, education, environment, finance, health, tourism, culture, entertainment and transportation.

In this case, the foreign worker must apply for confirmation that he or she is not subject to a work permit ("Work Permit").

- Foreign workers moving internally not within the scope of the 11 service industries mentioned above must apply for a Work License.

1. Procedures to confirm that foreign workers moving internally are not subject to issuance of a work permit

a. Certification agency: Ministry of Labor, War Invalids and Social Affairs or Department of Labor, War Invalids and Social Affairs.
b. Implementation time: the employer requires confirmation at least 10 days in advance from the date the foreign worker starts working.
c. Term of confirmation: according to the term of the Contract/Document of the foreign enterprise sending workers to Vietnam but not exceeding 2 years.
d. Documents (as prescribed in Article 3 of Decree 152/2020/ND-CP):
  i. Written request to confirm that foreign workers are not eligible for a Labor License.
  ii. Health certificate or health examination certificate.
  iii. Document approving the need to employ foreign workers.
  iv. Certified copy of valid passport according to law.
  v. Documents to prove that foreign workers are not required to have a work permit: prove that they are managers, executives, experts and technical workers; Labor contract between the employee and the foreign enterprise, contract/document of the foreign enterprise sending the employee to work at their commercial presence in Vietnam.
Consular legalization and authentication of documents: documents specified in points ii, iii and v are 01 original or certified copy. If they are from a foreign country, they must be consular legalized and translated into English. Vietnamese and authenticated unless exempted from consular legalization according to international treaties to which the Socialist Republic of Vietnam and the foreign country concerned are members or according to the principle of reciprocity or according to regulations. provisions of the law.
e. Processing time for certification application: 5 working days from the date of receipt of complete application for confirmation of not being eligible for a work permit. In case of non-confirmation, there will be a written response clearly stating the reason.

2. Procedures for issuance of Work Permits

a. Work permit duration: according to the term of the foreign party sending foreign workers to work in Vietnam but not exceeding 2 years
b. Documents (according to Article 9 of Decree 152/2020/ND-CP)
  i. Written request for a work permit from the employer.
  ii. Health certificate or health examination certificate.
  iii. Judicial record card or document certifying that the foreign worker is not a person serving a sentence or has not had his or her criminal record erased or is being prosecuted for criminal liability by a foreign country or foreign country. Vietnam issues no more than 06 months, from the date of issue to the date of application submission.
  iv. 02 color photos (size 4 cm x 6 cm, white background, straight face, bare head, no colored glasses), taken no more than 6 months before the date of application.
  v. Document approving the need to employ foreign workers.
  vi. Because. Certified copy of valid passport according to law.
  vii. Documents related to foreign workers: documents from the foreign enterprise sending them to work at that foreign enterprise's commercial presence in the territory of Vietnam and documents proving that the foreign worker has be recruited by that foreign enterprise before working in Vietnam for at least 12 consecutive months.

Consular legalization and authentication of documents: documents specified in points ii, iii, iv, vi, viii are 01 original or certified copy. If they are from a foreign country, they must be consularly legalized. except for cases exempted from consular legalization according to international treaties to which the Socialist Republic of Vietnam and the foreign country concerned are members or according to the principle of reciprocity or according to the provisions of law. the law; Translated into Vietnamese and authenticated according to Vietnamese law.

c. Procedure for applying for a Labor License
- At least 15 days in advance from the date the foreign worker is expected to start working in Vietnam, the employer submits an application for a work permit to the Ministry of Labor, War Invalids and Social Affairs. or the Department of Labor, War Invalids and Social Affairs where the foreign worker is expected to work.
- Within 05 working days from the date of receiving a complete application for a work permit, the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs where the employee is expected to work issuance of work permits to foreign workers. In case a work permit is not issued, there will be a written response clearly stating the reason.