Circular No. 03/2014/TT-BLDTBXH dated January 20, 2014

CIRCULAR

GUIDING IMPLEMENTATION OF A NUMBER OF ARTICLES OF GOVERNMENT’S DECREE NO.102/2013/ND-CP DATED SEPTEMBER 05, 2013, DETAILING IMPLEMENTATION OF A NUMBER OF ARTICLES OF LABOR CODE ON FOREIGN WORKERS IN VIETNAM

Pursuant to Government’s Decree No. 106/2012/ND-CP dated December 20, 2012, defining the functions, tasks, powers and organizational structure of the Ministry of Labor – Invalids and Social Affairs;
Pursuant to the Government’s Decree No. 102/2013/ND-CP dated September 05, 2013, detailing implementation of a number of articles of Labor Code on foreign workers in Vietnam
At the proposal of Director of the Employment Department;
The minister of Labor – Invalids and Social Affairs promulgates the Circular guiding implementation of a number of Articles of Government’s Decree No. 102/2013/ND-CP dated September 05, 2013, detailing implementation of a number of Articles of Labor Code on foreign workers in Vietnam (hereinafter abbreviated to Decree No. 102/2013/ND-CP).
Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application
Scope of regulation and subjects of application of this Circular are scope of regulation and subjects of application prescribed in Article 1 and Article 2 of Decree No. 102/2013/ND-CP.
Article 2. Interpretation of terms
1. Providers of contractual services prescribed at point d Clause 1 Article 2 of Decree No.102/2013/ND-CP are foreign laborers worked for at least 02 years (24 months) in a foreign enterprise with no commercial presence in Vietnam and must satisfy conditions for “experts” as prescribed at Clause 3 Article 3 of Decree No. 102/2013/ND-CP.
2. Foreign laborers working under form of service sale offer specified at point dd Clause 1 Article 2 of Decree No. 102/2013/ND-CP are foreign employees not living in Vietnam and not receiving remuneration from any source in Vietnam, participate in activities related to the act as representative for a service provider to negotiate for service consumption of that providers, provided that not sell directly that service to public and not directly participate in service supply.
3. Managers, executive directors defined at point i Clause 1 Article 2 of Decree No. 102/2013/ND-CP are foreign employees directly participating in management in organizations and enterprises including the work of directing organizations and enterprises or units affiliated those organizations and enterprises; supervising and controlling the work of specialized staff, managers or other superiors.
Chapter II

DETERMINATION OF WORK POSITION PERMITTED USING FOREIGN EMPLOYEES

Article 3. Demand in using foreign laborers
1. Before at least 30 days after the employers (except for contractor) estimate the recruitment of foreign laborers, the employers must report and explain as prescribed at Clause 1 Article 4 of Decree No. 102/2013/ND-CP on demand for using foreign laborers, including: Position of work, quantity, professional qualification, experiences, salary, working time and submit directly to the Departments of Labor – Invalids and Social Affairs of provinces and centrally-affiliated cities (hereinafter abbreviated to the provincial/municipal Departments of Labor – Invalids and Social Affairs) where the employers locate head office according to form No. 1 promulgated together with this Circular.
2. The employers who have been accepted for use of foreign employees but have changes of demand for use of foreign employees must directly submit report to explain adjustment and supplementation before at least 30 days from the tentative day of new recruitment, additional recruitment or recruitment for replacing foreign employees to the provincial Departments of Labor – Invalids and Social Affairs where the employers locate head offices according to form no. 2 promulgated together with this Circular.
3. The provincial Department of Labor – Invalids and Social Affairs shall notify acceptance for use of foreign employees to each employer according to Form No.3 promulgated together with this Circular within 15 days after receiving report on explanation or report on explanation for adjustment and supplementation of demand for use of foreign employees of the employers.
Article 4. Demand in using foreign laborers of contractors
Request of recruiting Vietnamese employees for positions expected to recruit foreign employees as prescribed at Clause 3 Article 5 of Decree No. 102/2013/ND-CP must be performed before at least 02 months for request of recruiting 500 Vietnamese employees or more and before at least 01 month for request of recruiting less than 500 Vietnamese employees, contractors shall send the request directly or via post to chairperson of the provincial People’s Committees where contractors perform bidding packages after getting confirmation of investors about acceptance of using foreign employees according to form No.4 promulgated together with this Circular.
In case where a contractor wishes to adjust, supplement number of foreign employees defined in bid dossier, dossier of proposals, the investor must confirm on acceptance of the plan adjusted and supplemented demand of necessary foreign employees for use of contractor according to Form No. 5 promulgated together with this Circular and before recruiting Vietnamese employees in work positions that expected to recruit foreign employees as prescribed in this Article.
Chapter III

GRANT OF WORK PERMIT

Article 5. Dossier of request for grant of work permit
Papers specified at Clause 1, Clause 3, Clause 4, Clause 5 and Clause 8 Article 10 of Decree No. 102/2013/ND-CP guided implementation as follows:
1. A written request for a work permit of the employer as prescribed in clause 1 Article 10 of Decree No. 102/2013/ND-CP made according to Form No.7 promulgated together with this Circular.
2. Papers specified at Clause 1, Clause 3, Clause 4, Clause 5 and Clause 8 Article 10 of Decree No. 102/2013/ND-CP guided implementation as follows:
a) If foreign laborers have resided in Vietnam, they must have a justice record granted by the national justice record center or cases of residing in Vietnam, they must have justice record granted by Departments of Justice in provinces and central-affiliated cities and written confirmation for not being offenders or liable to criminal prosecution as prescribed by foreign law granted by foreign competent agencies;
b) If foreign laborers have not yet resided in Vietnam, they must have written confirmation for not being offenders or liable to criminal prosecution as prescribed by foreign law granted by competent agencies of foreign countries.
3. Written confirmation of being managers, executive directors, experts or technical workers as prescribed at Clause 4 Article 10 of Decree No. 102/2013/ND-CP shall implement as follows:
a) For foreign laborers being managers, executive directors, they must have one of the following papers:
– documentary evidence of being managers, executive directors, consisting of:  Work permit or labor contract or decision on appointment in which defines that foreign laborer having been worked at position of managers or executive directors;
– Written confirmation of being managers, executive directors made by agencies, organizations or enterprises where such foreign laborers have ever worked.
b) For foreign laborers being experts, they must have one of the following papers:
– documentary evidence for foreign laborers who have qualification of engineers, masters or higher or equivalent qualification and have at least of 05 working years in the specialized line as trained and suitable with the work position which foreign laborer expected to work in Vietnam;
– Written confirmation for being expert, which is recognized by competent agencies and organizations or foreign enterprises.
c) For foreign laborers being technical laborers, they must have one of the following papers:
– documentary evidence or written confirmation of competent agencies and organizations or enterprises in foreign countries in which they have been trained technical specialized line with duration of not less than 01 year;
– documentary evidence for foreign laborers to have at least 03 working years in the specialized line as trained and suitable with the work position which foreign laborer is expected to work in Vietnam;
4. Written acceptance of using foreign laborers as prescribed at clause 5 Article 10 of Decree No.102/2013/ND-CP is notification of Department of Labor – Invalids and Social Affairs about work positions accepted by chairpersons of the provincial People’s Committees for using foreign laborers or documents of chairpersons of the provincial People’s Committees deciding to allow contractors to recruit foreign laborers in the work positions that fail to recruit Vietnamese laborers.
5. Documents to prove as prescribed at point a point c and point g Clause 8 Article 10 of Decree No. 102/2013/ND-CP are one of the following papers:
– Labor contract;
– Written confirmation of the employer;
– Decision on recruiting foreign laborers;
– Certificate of tax or insurance payment of foreign laborer.
Article 6. Work permit
1. Form of work permit as prescribed at Clause 2 Article 12 of Decree No. 102/2013/ND-CP is guided for implementation as follows:
a) Form of work permit:
Work permit has size of A4 (21 cm x 29.7 cm), includes 2 pages:  Page 1 is blue, coated with plastic; page 2 has white background, blue pattern, image of a star in the middle.
b) Content of work permit made according to Form No. 7 promulgated together with this Circular.
2. The employment Department of the Ministry of Labor – Invalids and Social Affairs shall print and issue uniformly work permit.
Article 7. Cases of re-grant of work permit
1. Work permit is lost, damaged.
2. Change of contents stated on the granted work permit:  Full name; date of birth; nationality; passport number, working places.
Working place in work permit is address where foreign employees work. Change of working address stated on work permit are foreign laborers in case of assigning, moving, sending to branches, representative offices or other facilities of the employer at the same province, central-affiliated city for full-time work.
Article 8. Dossier of request for re-grant of work permit
Papers specified at Clause 1, Clause 3 Article 14 of Decree No. 102/2013/ND-CP guided implementation as follows:
1. A written request for re-grant of a work permit of the employer as prescribed at clause 1 Article 14 of Decree No. 102/2013/ND-CP made according to Form No.8 promulgated together with this Circular.
2. Papers in dossier of request for re-grant of a work permit for foreign employees working under labor contracts as prescribed at point b clause 3 Article 14 of Decree No. 102/2013/ND-CPinclude: The granted work permit (except for case of lost) still be valid at least 05 days but not exceeding 15 days, before the expired date of the granted work permit; certificate of heath as prescribed at clause 2 Article 10 of Decree No. 102/2013/ND-CP; notification of Department of Labor – Invalids and Social Affairs about work positions accepted by chairpersons of the provincial People’s Committees for using foreign laborers or documents of chairpersons of the provincial People’s Committees deciding to allow contractors to recruit foreign laborers in the work positions that fail to recruit Vietnamese laborers.
3. For case of lost work permit as prescribed at clause 3 Article 14 of Decree No. 102/2013/ND-CP foreign employees must provide a written explanation certified by the employers.
Article 9. Time limit of the granted, re-granted work permits
Time limit of the granted work permits shall comply with Article 11 of Decree No. 102/2013/ND-CP time limit of the re-granted work permits shall comply with Article 16 of Decree No.102/2013/ND-CP but not exceeding time limit in written acceptance of chairpersons of the provincial People’s Committees about use of foreign employees or not exceeding time limit in documents of chairpersons of the provincial People’s Committees deciding on recruitment of foreign employees by contractors to work in each position which fails to recruit Vietnamese laborers.
Article 10. The written reply on refusal for work permit grant or re-grant
In case of refusal for grant of work permit as prescribed at clause 2 Article 12 of Decree No.102/2013/ND-CP refusal for re-grant of work permits as prescribed at Clause 3 Article 15 of Decree No. 102/2013/ND-CP the provincial Departments of Labor – Invalids and Social Affairs shall reply the employer according to Form No.9 promulgated together with this Circular.
Article 11. Confirmation for foreign laborers not required to grant Work permit
Confirmation for foreign laborers not required to grant Work permit as prescribed at Clause 2 Article 8 of Decree No. 102/2013/ND-CP guided implementation as follows:
1. The employer send documents directly to the provincial Departments of Labor – Invalids and Social Affairs to request for confirmation for foreign laborers not required work permit according to Form No.10 promulgated together with this Circular.
2. The provincial Departments of Labor – Invalids and Social Affairs shall confirm for foreign laborers required or not required work permit according to Form No.11 promulgated together with this Circular.
Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 12. Responsibilities of chairpersons of the provincial People’s Committees
1. To direct the local functional agencies to organize the propagation, dissemination of law; examination, inspection; and handling of violations as prescribed by law on the recruitment and management of foreigners working in their areas.
2. To direct local agencies and organizations to introduce and supply the Vietnamese employees to the contractors.
3. To accept the work positions that the employer may recruit foreign laborers; assign the provincial Departments of Labor – Invalids and Social Affairs to receive, sum up and appraise to submit to chairpersons of the provincial People’s Committees about demand of using foreign laborers and notify about the acceptance to chairpersons of the provincial People’s Committees to each employer.
4. To decide the permission of foreign contractors to be recruited foreigners into the jobs that fail to recruit Vietnamese employees.
Article 13. Responsibilities of the provincial Department of Labor – Invalids and Social Affairs
1. To organize the propagation and dissemination of the provisions of Vietnam labor law and guide the order of, procedures for and dossiers of work permit grant/re-grant to the enterprises, organizations, investors, contractors and foreign workers in the area.
2. To implement the introduction and supply of labor for the employers or contractors as prescribed by law.
3. To receive, sum up, appraise demand of using foreign laborers in each work position in localities and submit to chairpersons of the provincial People’s Committees for acceptance and notify in writing about each work positions permitted using foreign laborers to each employer according to the consent of chairpersons of the provincial People’s Committees.
4. To grant, re-grant work permits, confirm cases not required work permits.  When receiving dossier of request for work permit grant/ re-grant, confirmation of cases not required work permit, they must record in logbook according to Form No.12 promulgated together with this Circular and issue a receipt to the employer. In the receipt must clearly state date of receiving dossiers, papers included in dossier and time limit for reply. To keep dossiers of request for work permit grant/ re-grant as prescribed by law.
5. To check and inspect implementation of legislations on the recruitment and management of foreigners working in their areas by the employers in their localities.
6. To withdraw work permits as prescribed at Clause 2 Article 17 of Decree No. 102/2013/ND-CP.
7. Periodically report:
a) Before the fifth day of each month, to notify the provincial Departments of Public Security about grant of work permit according to Form No.13 promulgated together with this Circular.
b) Quarterly report to the Ministry of Labor – Invalid and Social Affair about foreign laborers working in their provinces and cities according to form No. 14 promulgated together with this Circular before the tenth day of first month of next quarter.
c) Biannually, before July 15 and every year, before January 15 of year following report year, the Ministry of Labor – Invalid and Social Affair about situation of foreigners working at enterprises, agencies and organizations in areas under their management according to form  no. 15 promulgated together with this Circular;
8. To apply information technology in management and work permit grant/re-grant to foreign employees working in Vietnam.
Article 14. Responsibilities of the employers
1. Strictly comply with the provisions of Vietnamese law on foreign laborers working in Vietnam.
2. To guide, supply to foreign laborers with Vietnamese legislations on foreign laborers working in Vietnam.
3. To conduct the procedures for grant of work permits, re-grant of work permits and confirmations for case not required work permit for foreigners working in Vietnam.
For foreign laborers granted work permit but in case of assigning, moving, or sending to a province or city other than province or city where they are working for full-time work or do at other position for the employer, to conduct grant of work permit as prescribed Article section 3 of Decree  no. 102/2013/ND-CP.
4. To pay fee for work permit grant/ re-grant as prescribed by law.
5. To fulfill labor contracts signed with foreigner working in enterprises and organizations as stipulated by law provisions; to send a notification of signing labor contract enclosed with copy of labor contract had been signed to the provincial Department of Labor – Invalids and Social Affairs where  issued work permit for such foreigner.
6. To manage dossiers and regularly update, supplement papers related to foreign laborers working in enterprises and organizations.
7. To manage foreign laborers working at enterprises and organizations.
8. Within 03 days, after withdrawing work permit for cases specified at Clause 1 Article 17 of Decree No. 102/2013/ND-CP of foreign employees, the employers shall submit directly to the provincial Department of Labor – Invalids and Social Affairs where grants that work permit. In case of failing to withdraw work permit, they must report in writing and clearly stating reason thereof.
9. Periodically report:
a) The employer shall perform the reporting regime biannually, before July 5 and every year, before January 5 of year following report year to the provincial Department of Labor – Invalids and Social Affairs where the employer locates head office, performs project, implement bidding package about situation of using foreign workers according to form no. 16 promulgated together with this Circular;
b) Foreign laborers granted work permits but in case of assigning, moving, or sending to a branch, representative office or other facility of that employer in and out province or city with duration of at least 10 days in 01 month or at least 30 accumulate days in 01 year, the employer must notify in writing about working time, position of work of such foreign workers and enclosed with copy of the granted work permit to the provincial Department of Labor-Invalids and Social Affairs where foreigners arrive for work.
Article 15. Responsibilities of investors
1. To organize supervision, request contractor to comply with contents committed in bid dossiers, dossier of proposals involving use of Vietnamese and foreign laborers when performing contracts.
2. To guide, urge, check contractors in implementing regulations on recruitment and use of foreign laborers to work for contractors as prescribed by law; to monitor and manage foreign laborers in implementation of Vietnamese law; to report quarterly to the provincial Department of Labor-Invalids and Social Affairs about use of foreign laborers of contractors according to Form No. 16 promulgated together with this Circular before the fifth date of first month of the next quarter.
Article 16. Responsibilities of foreign employees 
1. To research provisions of the law of Vietnam provided for by the foreign employers working in Vietnam, and to prepare the necessary papers in dossiers of request for work permit, dossiers of request for re-grant of work permit.
2. To implement the provisions of the law on the recruitment and management of foreigners working in Vietnam and other relevant provisions.
3. Within 02 days, after a foreign employee is withdrawn work permit as prescribed at Clause 1 Article 17 of Decree No. 102/2013/ND-CP foreign employee must submit that work permit to the employer.
Article 17. Effect
1. This Circular takes effect on March 10, 2014.
2. This Circular replaces Circular No. 31/2011/TT-BLDTBXH dated 03/11/2011 of the Ministry of Labor – Invalids and Social Affairs, guiding implementation of a number of Articles of Government’s Decree No. 34/2008/ND-CP dated March 25, 2008 and Government’s Decree No.46/2011/ND-CP dated June 17, 2011, amending and supplementing a number of Articles of Government’s Decree No. 34/2008/ND-CP dated March 25, 2008, on the recruitment and management of foreign workers in Vietnam.
3. The employers who registered demand of recruitment and use of foreign laborers in 2014 as prescribed at Clause 7 Article 19 of Government’s Decree No. 34/2008/ND-CP dated March 25, 2008 amended and supplemented and Clause 10 Article 14 of Circular No. 31/2011/TT-BLDTBXH dated 03/11/2011, of the Ministry of Labor – Invalids and Social Affairs before November 01, 2013, the provincial Departments of Labor – Invalids and Social Affairs shall sum up, appraise and report to Chairpersons of the provincial People’s Committees for consideration and decision.
In the course of implementation, any arising problems should be reported to the Ministry of Labor – Invalids and Social Affairs for timely guide and supplementation.