This paper outlines regulations governing the entry and immigration of expatriates to work for a foreign or Vietnamese entity in Vietnam. We deal first with visas and residency and then with work permits.
A. ENTRY AND IMMIGRATION
The regulations governing immigration and residency for expatriates in Vietnam are provided in the following legal documents:
Ordinance No. 28/2000/PL-UBTVQH10 of the Standing Committee of the National Assembly, dated April 28, 2000, regarding Entry, Exit and Residence of Expatriates in Vietnam ("Ordinance"). The Ordinance has been replaced by Law No. 47/2014/QH13 on Entry, Exit, Transit, and Residence of Expatriates in Vietnam (hereinafter referred to as the "Immigration Law") which was adopted by the National Assembly on June 16, 2014 with effect from January 1, 2015;
Decree No. 21/2001/ND-CP of the Government, dated May 28, 2001, providing Details on the Implementation of the Ordinance ("Decree 21");
Inter-Ministerial Circular No. 04/2002/TTLT/BNG-BCA of the Ministry of Foreign Affairs ("MOFA") and the Ministry of Public Security ("MPS"), dated January 29, 2002, providing Guidance for Implementation of Decree 21. It was amended by two Inter-Ministerial Circulars of the MOFA and the MPS; one is No. 01/2007/TTLT/BNG-BCA dated January 30, 2007 and the other is No. 01/2012/TTLT/BCA-BNG dated January 3, 2012.
1. Entry visa
According to the Ordinance and Decree 21, an expatriate and his/her family members may obtain multiple-entry visas with a duration of 12 months if the expatriate comes to Vietnam in order to work: (i) for a foreign invested project (i.e., a foreign invested enterprise ("FIE") or in connection with a business cooperation contract ("BCC")); (ii) under a cooperation contract with a Vietnamese entity; or (iii) for the office (either a branch or a representative office) of a foreign organization in Vietnam.
While the Ordinance does not appear to contemplate the issuance of a visa to an expatriate employed by a Vietnamese entity2, this is clearly an oversight, and we conclude that such an expatriate may obtain a 12-month, multiple-entry visa, perhaps under category (ii) above.
Vietnam made broad commitments as part of its WTO accession3 ("Vietnam's WTO Commitments") with regard to the immigration of expatriates working as managers, executives or experts in a foreign "commercial presence4" in Vietnam. Where the two overlap, Vietnam's WTO Commitments supersede the Ordinance. A commercial presence has since been specified to include a representative office, branch, or subsidiary (i.e., an FIE) or a BCC office.
In particular, Vietnam has made the following commitments:
An expatriate recruited by the commercial presence of a foreign entity in a position of "manager", "executive" or "expert" may obtain an entry visa with a duration of up to three years, renewable subject to his/her term of employment in Vietnam; and
An expatriate transferred from abroad to work for the commercial presence of a foreign entity in a position of "manager", "executive" or "expert" may obtain a renewable entry visa with a duration of even more than three years.
The difference between the Ordinance and Vietnam's WTO Commitments is the duration of the visa. According to the Ordinance, visas can only be issued for a duration of 12 months or less, while under Vietnam's WTO Commitments, the duration can be three years or more. In practice, the Government still grants visas for 12 months or less. It is not clear when three-year visas will be available.
"Managers" and "executives" can be persons who manage an FIE, a branch or BCC, and report only to the board of directors or shareholders. Management responsibilities include directing the FIE, the branch, or the office of the BCC themselves, or directing a department, division or independent unit. Management responsibilities also consist of supervising the performance of other supervisory, professional or managerial staff, including recruiting and dismissing staff. It appears that managers and executives can only manage the "supply" of services or production, but cannot themselves provide the services or be involved in production. This is limiting in certain businesses, for example, a software, architectural or similar service provider in which a manager both manages the operations and provides services to his/her clients.
An "expert" is defined as a person who has a bachelor's degree or higher, or is qualified at the level of engineer and has at least 5-years experience in the speciality in which s/he was trained.
The Law on Investment5 generally allows foreign investors, foreign experts and technicians who work permanently on an investment project to obtain a renewable multiple-entry visa to Vietnam with a duration of up to five years. However, there is no supporting language in the Ordinance or in Vietnam's WTO Commitments, nor anywhere else. Of note, the draft Law on Investment dated September 6, 2014 has removed this provision, and the matter is now regulated in the Immigration Law.
The Immigration Law provides a structure of 20 different categories of visas. For instance, the Immigration Law allows foreign investors and foreign lawyers to be issued visas with a duration of five years. Expatriates who work for local companies in Vietnam can be issued two-year visas. Other visas will be valid up to 12 months, except in the following cases:
Six-month-visas for an expatriate who visits his/her relatives or comes to Vietnam for certain purposes;
Visas of three months for foreign tourists or for foreign attendees of a meeting in Vietnam; or
30-day-visas issued by an overseas Vietnamese visa-issuing authority (say, a Vietnamese Embassy).
Visas can be renewed, provided that conditions for original visa issuance continued to be met.
The Immigration Law prohibits changing the purpose of a visa. For instance, an expatriate will no longer be able to change from, say, a tourist visa to working status.
2. Visa exemption
a) Exemption under international agreements, protocols, etc.
As of June 2014, Vietnam has reached entry visa exemption agreements with 81 countries.6 However, most of these agreements only grant an exemption to a person with a diplomatic or public affairs passport.
An entry visa exemption for persons holding ordinary passports and staying in Vietnam for 30 days or less is granted under Vietnam's agreements with Thailand, Malaysia, Indonesia, the Philippines, Singapore, Japan, Republic of Korea, Denmark, Sweden Norway, and Finland. Such exemptions are also granted to Russian citizens holding ordinary passports and staying in Vietnam for 15 days or less.
b) Exemption for expatriates who are overseas Vietnamese
According to Decision No. 135/2007/QD-TTg of the Prime Minister, dated August 17, 2007 (as amended by Decision No. 10/2012/QD-TTg dated February 10, 2012), an overseas Vietnamese is exempt from a visa to enter Vietnam if that person has obtained a certificate of visa exemption issued either by a Vietnamese diplomatic office abroad or by the Immigration Department of the MPS. A person with a certificate of visa exemption may stay in Vietnam for up to 90 days upon each entry.
In order to apply for such a certificate, an overseas Vietnamese must present one of the following documents:
* Certificate of Vietnamese origin;
* Guarantee letter from a Vietnamese association in the foreign country; or
* Guarantee letter from a Vietnamese national.
A similar visa exemption is also available to the spouse and children of an overseas Vietnamese. A certificate of visa exemption for an overseas Vietnamese and his/her spouse or children is valid for up to five years and is renewable.
3. Residence permit
a) Temporary Residence Card "TRC"
An expatriate who has stayed in Vietnam for at least one year may apply for a TRC from the Immigration Administration. With a TRC, an expatriate can stay in Vietnam without a visa.
According to the Ordinance, a TRC can have a duration of up to three years, subject to the cardholder's term of employment. However, it is unclear from the Ordinance whether a TRC can be renewed or extended if it expires during the expatriate's employment. In practice, the term of TRC should be consistent with the term of the cardholder's work permit. Currently, the term of a work permit is a maximum of two years, and the TRC is renewed after two years if the cardholder remains employed.
The term of a TRC is rather different under the Immigration Law. The New Law classifies TRCs into several categories with three different terms. For example, a foreign investor, a foreign lawyer or an overseas student can obtain a five-year TRC; a chief representative of a foreign trader's representative office/branch can be issued a TRC for up to three years; and a foreign employee can be issued a TRC for two years.
If an expatriate works for an FIE or a BCC as a manager, an executive or an expert, the expatriate may obtain a TRC under the more favorable terms specified in Vietnam's WTO Commitments. In this regard, we distinguish between the case of an intra-company transfer and the normal recruitment of an expatriate. In particular:
A manager, executive or an expert transferred from abroad to work for the commercial presence of a foreign entity in Vietnam, may receive an extendable TRC with an initial term of three years. To qualify, the employee must have been employed by the foreign enterprise for at least one full year.
A manager, executive or expert who is recruited by the commercial presence of a foreign entity may be granted a TRC for the duration of his/her employment contract or for an initial period of three years, whichever is shorter. A TRC may be extended, subject to the duration of the employment contract.
b) Permanent Residence Card ("PRC")
A PRC may be granted to an expatriate who resides temporarily in Vietnam and is the spouse, child, or parent of a Vietnamese citizen who resides in Vietnam. An expatriate with a PRC can stay in Vietnam without a visa. Ironically, PRC must be renewed every three years.
The Immigration Law broadens the scope of expatriates who can be issued PRCs.
New categories include:
Foreign scientists or experts who temporarily reside in Vietnam and are recommended by the Minister or head of ministerial/governmental agencies in their fields; and
Persons who have no nationality and have resided temporarily in Vietnam since before 2000.
The Immigration Law supplements conditions7 for issuance of a PRC as follows:
An expatriate who contributes to the development and protection of Vietnam and is awarded a medal or title by the Government;
An expatriate who has resided temporarily in Vietnam for three or more consecutive years, and is sponsored by his/her parent, spouse, or child who is a Vietnamese citizen and has permanent residence in Vietnam.
Expatriates in these categories must submit a dossier to the immigration authorities to establish entitlement. The immigration authorities will issue a renewable PRC valid for ten years.
B. EMPLOYMENT OF EXPATRIATES IN VIETNAM
The employment and management of expatriates working in Vietnam are regulated by the following legal documents:
Labor Code No. 10/2012/QH13 issued by the National Assembly on June 18, 2012 ("Labor Code") which took effect on May 1, 2013;
Decree No. 102/2013/ND-CP of the Government, dated September 5, 2013 on Employment of Expatriates in Vietnam ("Decree 102") which took effect on November 1, 2013;
Circular No. 03/2014/TT-BLDTBXH dated January 20, 2014 promulgating guidance on a number of articles of Decree 102 ("Circular 03") which took effect on March 10, 2014;
Resolution No. 47/NQ-CP of the Government dated July 8, 2014 ("Resolution 47"); and
Official letter No. 2779/LDTBXH-VL of the Ministry of Labor, War Invalids and Social Affairs dated August 4, 2014.
1. Employment of expatriates
a) Approval for recruitment of an expatriate:
An employer must prepare a plan to recruit expatriates for each job for which Vietnamese do not qualify, and file such plan, 30 calendar days or more prior to the proposed recruitment. It must be filed with and approved by the Chairman of the provincial People's Committee.8 This is a compulsory step in order for an expatriate to be issued a work permit.
Decree 102 sets out a number of conditions that an expatriate must meet in order to be issued a work permit. In particular:
The expatriate must have full capacity of civil acts;9
His/her health must be appropriate for the required working conditions;
The expatriate must hold a position of manager, executive, or expert as defined in Section A.1 above;
The expatriate must not: (i) have a criminal record that involves a national security offence; or (ii) be subject to criminal prosecution or be under criminal sentence under Vietnamese or foreign law;
The employer must receive approval to recruit an expatriate (see Section B.1.a above); and
The expatriate must have a work permit issued by the Department of Labor, War Invalids and Social Affairs ("DOLISA"), except where exempt.
In addition, a foreign technician who has been trained one year in a technical speciality and has at least three years' experience in that speciality, can apply for a work permit if s/he meets the above conditions.
c) Numerical limit:
Decree 102 no longer contains a limitation on the number of expatriates that can be recruited by an employer.
d) Form of employment:
An expatriate who qualifies as a manager, executive, expert, or technician can work in Vietnam under any of the following forms:
Recruited by an entity in Vietnam
An entity in Vietnam, including a foreign entity's commercial presence or a Vietnamese entity, can recruit a qualified expatriate to work for it as a manager, executive or expert.
Under an intra-company transfer
A foreign entity may transfer a manager, executive or expert ("intra-company transferee") to its commercial presence in Vietnam. To do so, the intra-company transferee must have been employed by the foreign entity for at least 12 consecutive months.
Performance of contract
An expatriate may work in Vietnam to perform a contract between a foreign entity and its Vietnamese counterparty, which contract requires the use of an expatriate's service.
Contractual service supplier ("CSS")
A CSS is an employee of an offshore entity, and s/he will enter into Vietnam, on behalf of that offshore entity, in order to render services for the Vietnamese counterparty of the offshore entity. In such case, the following conditions and requirements apply:
A service contract must have been entered into by the offshore entity and its Vietnamese counterparty;
The CSS must have been employed by the foreign entity for a period of at least two years; and
The CSS has either a bachelor's degree or higher or is qualified at the level of engineer; and has at least five-years of experience in the speciality in which s/he was trained.10
Services sales person ("SSP")
An SSP is an expatriate worker who neither lives in Vietnam, nor receives remuneration from any source whatsoever in Vietnam, and participates in activities that involve the representation of a service provider in respect of the service, provided that s/he neither provides the services nor sells the services to the public.
2. Work permit exemptions
A work permit is not required if the expatriate:11
a. is a contributing member/owner of a limited liability company;
b. is a member of the Management Board of a joint stock company;
c. is head of either a representative office or project of an international organization or a foreign Non-Governmental Organization ("NGO") in Vietnam. A chief representative of a foreign trader's representative office is not included in this category, and is required to obtain a work permit;
d. enters and stays in Vietnam for less than three consecutive months to provide services (defined in Section B.1.d). A work permit is required if a foreign SSP stays in Vietnam for three or more consecutive months;
e. enters Vietnam and stays for less than three consecutive months, to handle an emergency matter or one that involves complicated technical or technological problems that affect production/business and cannot be adequately addressed within Vietnam. However, if the situation requires the expatriate to stay in Vietnam for three or more months, a work permit is necessary;
f. is a foreign lawyer with a Certificate of Law Practice in Vietnam granted by the Ministry of Justice;
g. is a foreign pupil/student who is studying in Vietnam. The employer, however, must inform the provincial labor authority of its recruitment of a foreign pupil/student seven days prior to the recruitment;
h. is seconded to Vietnam as permitted under Vietnam's WTO Commitments;
i. provides expert and technical consultancy services or undertakes other tasks with respect to research, formulation, evaluation, monitoring and assessment, management and implementation of a program or project using official development aid ("ODA");
j. has a media license issued by the MOFA;
k. is appointed by a competent authority in a foreign country to teach at an international school which is managed by a foreign diplomatic office or an international organization in Vietnam;
l. is a volunteer. It means an expatriate working in Vietnam on a voluntary basis and without entitlement to a salary in order to implement an international treaty to which Vietnam is a signatory;
m. is a consultant, teacher, or researcher at a university or vocational college, and has a master decree or higher (or similar qualification), and works in Vietnam for period not exceeding 30 days; or
n. implements an international treaty to which a Vietnamese Government authority, a provincial body or a central socio-political organization is a signatory.
Vietnam made a commitment in respect of employee immigration in the tourism industry in 2009. It is the ASEAN Mutual Recognition Arrangement on Tourism Professionals ("MRA-TP"). The MRA-TP will take effect in ASEAN in 2015. Under the MRA-TP, Vietnamese may work in ASEAN member countries and vice versa. It is likely that a significant number of employees in the tourism industry will enter Vietnam to work.
In order for an expatriate to be exempt from a work permit, the employer must file an application with the provincial labor authority to confirm the exemption.
Seven working days prior to the date the exempt expatriate is scheduled to start working in Vietnam, the employer/Vietnamese counterparty must send an application to the DOLISA of the locality where such expatriate will be working. The application comprises:
A request for confirmation that the expatriate is not required to have a work permit (made on a standard form);
Spreadsheet list of work-permit-exempt expatriates indicating their names, ages, nationalities, passport numbers, dates of commencement and completion of work, and their positions; and
Document to prove that the expatriate falls into an exempt category.
A document in a foreign language need not be legalized, but it must be translated into Vietnamese and the translation must be notarized.
3. Work permits
An employer or the counterparty of an employer in cases in which the employee meets conditions set forth in Section B.1.b), must prepare an application for the expatriate's work permit. The process by which a work permit is issued is discussed below.
a) Time frame:
An application for a work permit must be filed with the DOLISA of the province in which the Vietnamese entity/counterparty is located. It must be done at least 15 working days prior to the date the expatriate is scheduled to start working in Vietnam. An employer (or the counterparty) in Vietnam will normally receive the work permit from the DOLISA within 10 working days from the date of filing, and must then deliver it to the expatriate. As issuance of a work permit can be delayed, filing timelines should take this into account. Moreover, filing should be coordinated with recruitment timelines discussed at Section B.1.a).
b) Requirement of a work permit:
The work permit requirement applies equally to an expatriate working for the commercial presence of a foreign entity and an expatriate working for a Vietnamese entity. We have discussed exceptions in Section B.2. above.
A work permit is specific to an employer. If an expatriate wishes to work concurrently for another employer in Vietnam, then, even if his/her current work permit is valid, the expatriate must obtain another work permit.
c) Application to obtain a work permit:
The entity for which an expatriate will work (not the expatriate him or herself) is responsible to apply for the work permit. The application for a work permit includes the following documents:
(i) Standard documents
A request to issue a work permit (made on a standard form);
A health certificate, issued in a foreign country or in Vietnam;
A judicial record issued by an authority (i.e. a judicial or law enforcement agency) in the country in which the expatriate resides, showing whether the applicant has a criminal record.
The criminal record of an expatriate who has lived or is livingin Vietnam includes: a criminal record issued by the Criminal Records Centre of Vietnam (if the expatriate has lived in Vietnam in the past) or issued by the provincial Department of Justice (if the expatriate currently lives in Vietnam), and a criminal record issued by a competent foreign authority;12
Documents to certify that the expatriate is a manager, executive director, expert or technician. They are documents which prove either the expatriate's professional qualification or his/her required working experience. Professional qualification can be shown by diplomas, degrees, or skill certificates where an expatriate is a craftsman, soccer player, pilot, or aircraft maintenance person. Required working experience should be at least five years for a foreign expert, and three years for a foreign technician.
Letter of consent on expatriates' employment issued by the Chairman of the provincial People's Committee to the employer;
Copy of a valid passport (or valid document in place of a passport); and
Two passport photos [4cm x 6cm] taken within the six months prior to the filing date.
A document issued in a foreign country must be legalized. Legalization requires the following steps:
A photocopy of a document must first be certified as a "true copy" by the licensing authority or a notary public in the place where it was issued ("Country of Origin");
Second, the certified copy must be endorsed by the State Department or Foreign Affairs Office of the Country of Origin (if required by the law of the Country of Origin); and
Finally, the endorsed document must be either: (i) legalized by the Vietnamese Embassy/Consulate in the Country of Origin, or (ii) authenticated by the Embassy/Consulate of the Country of Origin in Vietnam, and then legalized by the Vietnamese MOFA.
A notarized Vietnamese translation of a legalized document is also required.
(ii) Specific documents relating to the expatriate's work in Vietnam
Along with the standard documents listed above, and depending on the category, the application must also include the following additional documents:
SEE GRAPHIC BELOW
If the specific document is made in a foreign language, it does not have to be legalized, but it must be translated into Vietnamese and the translation must be notarized.
Upon receipt of a work permit, the employer and the expatriate must enter into an employment contract. Within five working days from the date of the employment contract, the entity at which the expatriate works must send a copy of the employment contract to the DOLISA. This requirement only applies to an expatriate recruited by a commercial presence of a foreign entity in Vietnam or a Vietnamese entity.
d) Term of a work permit:
The term of a work permit cannot exceed two years and must coincide with the following duration:
term of employment contract;
term of transfer in case of an intra-company transfer;
term of the contract in case of performance under a contract;
term of the contract under which the expatriate works as a CSS;
term of appointment for sale of services;
term of license of the foreign NGO or international organization in Vietnam; or
term of appointment for the expatriate to establish a commercial presence in Vietnam.
e) Extension of a work permit:
A work permit is no longer extendable. That is, when a work permit expires, a new application for a new work permit must be made. See discussion below.
f) Reissuance of a work permit:
A new work permit can be issued in the two following circumstances:
(i) The current work permit is lost, damaged; or there are changes which must be recorded in the work permit, such as: change of name, date of birth, nationality, passport number or working location.
Within three days from the date a work permit is lost or damaged, or if any information recorded in the work permit changes, the expatriate must inform his/her employer, the Vietnamese counterparty, or the representative of the foreign NGO or international organization. Within five working days from the receipt of the report, the employer, Vietnamese counterparty, or the representative must submit an application for reissuance to the DOLISA where the work permit was originally issued. The dossier must include:
request for reissuance (on a standard form);
copy of passport or equivalent document;
work permit unless it is lost; and
two passport photos [4cm x 6cm] taken within the six months prior to the filing date.
(ii) The current work permit expires.
At least five days but no earlier than 15 days prior to the expiry of the work permit, the employer must file an application with the DOLISA for reissuance of the work permit. Documentation for reissuance of a work permit is less complicated than that required for an initial work permit. Specifically, the employer is not required to submit the judicial records, documents confirming professional qualifications/skill certificates and required working experience, nor copy of a passport as required in the standard documents--Section B.3.b(i) above.
In this case, the dossier for a work permit includes:
request for reissuance (on a standard form);
letter of consent on expatriates' employment as discussed in Section B.1.a);
specific documents relating to the expatriate's work in Vietnam as mentioned in Section B.3.c)(ii);
work permit which is going to expire; and
two passport photos [4cm x 6cm] taken within six months prior to the filing date.
The competent DOLISA will re-issue a work permit within three working days from the date of filing a complete application.
After receipt of the re-issued work permit, if an employment contract is signed, its copy must be filed with the DOLISA that re-issues the work permit, within five working days from the date of the employment contract.
g) Withdrawal of a work permit:
There are several ways a work permit may be withdrawn by the DOLISA that issued the work permit:
There is false or incorrect information in the application for a work permit;
The work permit expires;
The expatriate or the employer fails to comply with the contents of the work permit;
The employment contract between the expatriate and the entity in Vietnam is terminated. As a work permit is specific to an employer, it cannot be used to work for another employer;
The work as described in the expatriate's employment contract is inconsistent with the contents of the work permit;
Economic, commercial, financial, banking, insurance, scientific and technical, cultural, sporting, educational, vocational training or medical health contract for which s/he works terminates or expires;
It is revoked by competent State authorities because the expatriate violated Vietnamese law;
The foreign entity sends a notice to terminate the intra-company transfer of the expatriate to the entity in Vietnam;
The employer terminates its operation; or
The expatriate is imprisoned, dies or is missing as determined by a court.
4. Work permit, customs clearance of personal effects
Decree No. 154/2005/ND-CP guiding the Law on Customs No. 29/2001/QH10 (as amended in 2005 by Law No. 42/2005/QH11) ("Decree 154") regulates customs procedures, inspection, and supervision. Under Article 35 of Decree 154, an expatriate who brings personal effects into Vietnam has to submit: (i) a customs declaration; (ii) a detailed list of assets; (iii) a bill of lading; and, most importantly (iv) written certification of his/her permission to work in Vietnam, issued by a competent authority (i.e. a work permit). This requirement for a work permit for customs clearance purposes is currently provided for in the Labor Code.
In conclusion, except in the case of exemptions, a work permit is mandatory. An expatriate who works in Vietnam without a work permit may be deported within 15 working days from discovery. The employer's operation may be suspended for three months, and a maximum penalty of VND 75 million (approximate US$ 3,600) may be applied to the employer who employs an expatriate without a work permit.