Although the above regulations have contributed to tightening the management of recruitment of foreigners, they have also caused obstacles that make it difficult for the country to engage more high-quality workers.Doan Vu Hoai Nam - Associate, ASL LAW Firm
The current process and procedures for applying for a work permit for foreigners are mainly governed by the Labour Code 2019 and Decree No.152/2020/ND-CP.
According to the law, the process of applying for a work permit for foreigners working in Vietnam includes several steps. The first is that at least 15 working days before the date on which the foreign worker is expected to start working for the employer, the applicant shall submit an application to the department of labour, invalids, and social affairs in localities where that worker plans to work.
Accordingly, the companies or employer has to obtain approval from the authority for the position of the foreigners that the employer recruit. To do so, the employer needs to prove that Vietnamese workers cannot meet the employer’s needs.
The second step is that within five working days after receiving a complete application, the department shall issue a work permit according to the form printed and issued by the Ministry of Labour, Invalids, and Social Affairs.
After being granted a work permit, the employer and foreign worker must sign a written labour contract in accordance with the provisions of Vietnamese labour law before the expected date of working for the employer. The employer must send the signed labour contract upon request to the department, and the employment contract is the original or certified copy.
Although the law clearly stipulates the process as well as the necessary documents when applying, both the employer and worker may face obstacles in the aforementioned process. Firstly, the dossier includes numerous documents that need consular legality, including health certificates, criminal record cards issued by other countries, and documents proving that the employees worked for foreign employers.
The process of consular legalisation of these documents is often costly and may take a long time, depending on the laws of each relevant country.
Secondly, there have been difficulties in explaining the need to employ non-nationals, which include proving the demand, training plans, recruitment notices, and more. Specifically, the employer is required to prove that they have recruited Vietnamese people, but local workers do not meet their requirements.
In addition, competent authorities require recruitment plans and training plans of employers to prove that they have recruited Vietnamese and trained them for certain positions before recruiting foreigners.
Thirdly, according to the law, a work permit can only be renewed once for a maximum term of two years. Thus, when foreign employees wish to continue working in Vietnam, even when with the same job, they must prepare all applications for a new work permit after the first renewal.
Hence, if such workers no longer keep the old dossiers that they previously submitted to state agencies, they will have to reapply for these records. This may make it very difficult for workers as they may not be able to get these documents or take a lot of time to carry out the consular legalisation procedure.
Fourthly, each work permit grants permission for foreign individuals to work at an enterprise or organisation. Currently, the law does not restrict foreign workers from engaging in employment at multiple enterprises within Vietnam concurrently. However, should non-Vietnamese employees choose to work at two or more enterprises/organisations, they are obliged to apply for work permits.
Although the time for issuance of a work permit is five working days as mentioned, it has been well documented by various organisations and associations that some companies have needed well over two months to complete procedures and gain approval of a permit.
For these shortcomings, we propose simplifications. First of all, the law should specify that employers (except contractors) before employing foreigners must announce the recruitment of Vietnamese workers to positions expected to recruit foreign workers on the Public Service Portal for at least 15 days. By stipulating the publication of recruitment notices on the national portal, employers can effectively articulate the factors impeding their ability to hire Vietnamese workers.
In addition, this suggestion facilitates Vietnamese individuals in accessing employment opportunities offered by agencies, organisations, and enterprises. Moreover, it fosters transparency in the labour recruitment process and strengthens the relationship between labour supply and demand.
Another suggestion is that the competent authority should consider increasing the term of work permits to meet the needs of businesses for a longer period of time and to unify labour contracts signed with foreign workers.
In addition, if the foreign worker wishes to continue working at the company, when carrying out the procedure for granting a new work permit, the Vietnamese law may omit the application components that the worker previously submitted to demonstrate their ability. Thereby, this can help simplify administrative procedures in Vietnam.
Finally, legal provisions could be amended to allow non-nationals working at multiple locations to have only one permit. Specifically, for those working at multiple locations in a province or city, the employee is granted a work permit by the department of labour, invalids, and social affairs. For foreigners working at multiple locations in more than one province or city, work permits will be issued by the department.93,000 foreigners currently have work permits in Vietnam
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