Tax & legal alert - Decree 152 regarding foreign employees working in Vietnam

Below are some noteworthy points of Decree 152:

1. Conditions to determine internal transfer, expert and technical worker

• Internal transfer: Amongst other conditions, a foreign employee must be employed by the foreign enterprise at least 12 consecutive months prior to the transfer date (the employment period required previously is only 12 months).

• Expert: Supplementing a case where a foreign employee is determined as an expert: having at least 05-year experience and a practicing certificate in corresponding with the job position that he/she will be appointed in Vietnam. The foreign employee is no longer considered as an expert based on a certificate of foreign organization/enterprise.

• Technical worker: Supplementing a case where a foreign employee is determined as a technical worker: having at least 05-year experience doing the job that he/she will do in Vietnam.

2. Cases where approvals of demand for recruiting foreign employees are not required

There are 6 new cases, including:

• The foreign employee is the owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion Vietnam Dong.
• The foreign employee is the 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 foreign employee enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory in accordance with Vietnamese laws.
• The foreign employee is a probationer or apprentice on a Vietnam sea-going ship.
• The foreign employee obtains an official passport to work for a regulatory agency, political organization, or socio-political organization.
• The foreign employee takes charge of establishing a commercial presence in Vietnam.

The case where the foreign employee enters Vietnam to hold the position of an expert, manager, managing director or technical worker for a period of less than 30 days and an accumulated working period of under 90 days per year now is changed to “working for a period of less than 30 days and up to 3 times a year”.

3. Cases where the foreign employees are not required to obtain either Work Permit (“WP”) or Certificate of Work Permit Exemption (“CoWPE”)

• There are 4 news cases, including:
  • The foreign employee is a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with Law on Lawyers.
  • The foreign employee gets married with a Vietnamese citizen and resides in Vietnam.
  • The foreign employee is the owner or capital contributor of a limited liability company with a capital contribution value of at least 3 billion Vietnam Dong.
  • The foreign employee is the 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 foreign employee who “enters Vietnam for a period of less than 03 months to resolve complicated technical or technological issues, which affect or threaten to affect business operation and cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam” is no longer exempted from application for CoWPE.

The employers must inform competent authorities of foreign employees who are not required to obtain either WP or CoWPE at least 03 days prior to such employees’ starting date.

4. Reissuance of WP/ Renewal of WP

In case where the remaining validity period of a WP is at least 5 days but not exceeding 45 days, according to Decree 152, the employers shall have to implement procedures for renewing such WP (instead of procedure for re-issuance as before).

A WP is allowed to be renewed once time with a maximum term of 2 years. After that, the employer shall have to apply for a new WP for the foreign employee.

5. Adjusting time limit for implementing some procedures

• Time-limit for issuance/ refusal of approval of demand for recruiting foreign employees: 10 working days (instead of 15 days as before).

• Time-limit for submitting dossier of application for CoWPE: At least 10 days prior to the foreign employee’s starting date (instead of 07 days as before).

• Time-limit for processing dossier of application for CoWPE: 05 working days (instead of 03 working days as before).

• Time-limit for submitting dossier of application for WP:  At least 15 days prior to the foreign employee’s starting date (instead of 15 working days as before).

6. Transitional provisions

• Approval of demand for recruiting foreign employees, CoWPE or WP which have been issued or re-issued in accordance with former provisions shall be vaid until their expiration.
• Labor contracts signed with foreign employees which are still effective before the effective date of Decree 152 shall be still implemented until the corresponding issued WP expires.

OUR SUPPORT

We do trust the above points are notable and sufficient, but should you have any questions or need a deeper discussion on this issue, please do not hesitate to contact us.