Work permit puzzlement

What does the promulgation of this new decree mean for foreign, especially European, enterprises? What positive changes does the decree bring?

The most prominent feature of this decree is to clarify that the requirement for a work permit or an exemption certificate does not apply to foreigners coming to work for less than 30 days and whose cumulative working time does not exceed 90 days in a year. Previously, the business community was anxious to see if foreigners working for such short terms would be included in the scope of Decree No.102/2013/ND-CP.

Another encouraging point of Decree 11 is that it extends the time frame for lodging the re-issuance of work permits. Accordingly, work permit re-issuance applications will be accepted from 45 days prior to the expiry date, instead of the 15 days as per current regulations. Hence, foreigners have sufficient time to renew visas or obtain residence cards after the granting of the new work permit.

The simplified terms of eligibility for work permit for individuals who have been previously granted such documents in Vietnam are also highly appreciated by the business community. Under current regulations, they have to submit new applications for similar cases.

Foreign enterprises have faced many problems as regulations on work permits have been constantly changing, with enforcement wavering at the local level. Does this decree manage to stabilise the situation?

Redefining the concept for foreigners’ employment positions remains a definite concern. We fully support the government to ensure the selection of foreign labour force in Vietnam and its practical benefits in supporting local human resources development. However, accompanied with the strict definitions and shortage of detailed instructions can still cause inadequacies when applied.

For example, a lot of otherwise proficient experts are currently working in fields that are different from their majors at university. Meanwhile, local departments of Labour, Invalids and Social Affairs can still refuse to accredit certificates issued by foreign organisations or enterprises due to a lack of clear regulations on their content, requirements or information on the issuing organisations or enterprises.

In addition, according to the definition of managers or executive directors stipulated in Decree 11, we now wonder if it is allowed to employ foreigners in middle management positions, for instance as managers. Moreover, what documents are required to prove eligibility for a work permit under the concept of managers and executives?

The requirements on criminal records should also be clarified. According to Decree 11, foreigners are required to have clean criminal records in Vietnam to reside in the country. We are afraid that this provision will lead to the practice that foreigners will have to produce evidence of clear criminal records even if they only come to Vietnam for a short business trip or have previously worked in Vietnam. Such applicants will face difficulties in applying for papers in Vietnam, unless the government facilitates an online application system for criminal record or provide for applications through Vietnamese diplomatic missions abroad.

With some problems remaining unresolved, how effective is this decree?

In our opinion, it is still early to give a comprehensive answer to this question. We have to wait for the guiding circulars to be introduced and for the new rules to be applied for a period of time. In general, regulations have been eased, but we are not entirely clear if the new conditions on foreign employees’ positions will cause more shortcomings when applied.

Does the EuroCham’s HR and Training Sector Committee have any recommendations to the Vietnamese government on the management of foreign employees?

First, we would like to suggest the government to exercise prudence in drafting and issuing the guiding circulars for Decree 11 to avoid continuous changes in regulations and practices. The Eurocham’s HR and Training Sector Committee are getting feedback from our members on Decree 11 and will turn to the government and the Ministry of Labour, Invalids and Social Affairs with more specific and practical recommendations as soon as possible.