Decree 70/2023/ND-CP amending Decree 152/2020/ND-CP regulating foreign workers working in Vietnam

Decree 70/2023/ND-CP was issued to amend and supplement 14 points specified in Decree No. 152/2020/ND-CP on the employment of foreigners in Vietnam and recruitment and management. Management of Vietnamese workers working for foreign organizations or individuals in Vietnam. According to the shortened regime, the Decree takes effect from the date of promulgation, which is September 18, 2023. This Decree also abolishes a number of regulations of Decree No. 35/2022/ND-CP regulating the management of industrial parks and economic zones.

Legal basis

• Labor Code 2019;
• Decree 152/2020/ND-CP, as amended and supplemented by Decree 35/2022/ND-CP and Decree 70/2023/ND-CP on employment of foreigners in Vietnam and recruitment, Manage Vietnamese employees working for foreign organizations or individuals in Vietnam.

Revised concept of expert and executive

Experts who are foreign workers now no longer need to meet the condition of having at least 3 years of experience “working in a specialized field with training appropriate to the job position” but instead only need to “work suitable for the job position” that the foreign worker plans to work in Vietnam. Similar regulations also apply to “Technical Labor” to reduce the burden of proof for workers when applying for a license or certification at a state agency according to regulations.

For the executive director, instead of just being defined as “the head and direct manager of a unit under an agency, organization or enterprise”, currently one of the following cases is a foreign worker with can meet the conditions to be considered an executive director to enjoy the corresponding work permit regulations:

• Head of branch, representative office, or business location of the enterprise.
• The person who heads and directly operates at least one area of an agency, organization, or enterprise and is subject to the direct direction and management of the head of the agency, organization, or enterprise.

Regulations on the management of foreign labor use

Determine the need to use foreign workers

Decree 70/2023/ND-CP amends and supplements Article 4 of Decree No. 152/2020/ND-CP on employment of foreign workers as follows:

• Shorten the time required to submit a report explaining the need to employ foreign workers from at least 30 days to at least 15 days before the expected date of employing foreign workers. This deadline also applies to regulations on submitting reports explaining changes in employee employment needs.
• Additional cases where it is not necessary to determine the need to use additional labor in the case of foreign workers:
  • Be a foreign lawyer who has been granted a License to practice law in Vietnam according to the provisions of the Law on Lawyers.
  • Are a foreigner married to a Vietnamese person and living in Vietnamese territory.
  • Entering Vietnam to provide professional and technical consulting services or perform other tasks serving research, development, appraisal, monitoring, evaluation, management, and program implementation, projects using ODA according to regulations or agreements in international treaties on ODA signed between competent agencies of Vietnam and foreign countries.
  • Licensed by the Ministry of Foreign Affairs to operate information and press activities in Vietnam according to the provisions of law.
  • Volunteers are foreign workers who work in Vietnam voluntarily and without salary to implement international treaties to which Vietnam is a member and have confirmation from foreign diplomatic missions or international organizations in Vietnam.
  • Confirmed by the Ministry of Education and Training that foreign workers enter Vietnam to teach, research, or manage educational institutions according to the provisions of Article 7 of Decree 152/2020/ND-CP amended and supplemented by Decree 70/2023/ND-CP.

Recruitment announcement

• The regulations will be implemented from January 1, 2024.
• The recruitment announcement of Vietnamese workers for the expected positions will be made on:
  • Electronic information portal of the Ministry of Labor, War Invalids and Social Affairs (Department of Employment); or
  • Electronic information portal of the Employment Service Center established by the decision of the Chairman of the People’s Committee of the province or centrally run city;
• Time limit: at least 15 days from the expected date of the report explaining the need to use foreign workers.
• The content of the recruitment announcement includes position and job title, job description, quantity, requirements for qualifications, experience, salary, working time, and working location.
• After failing to recruit Vietnamese workers to positions recruiting foreign workers, the employer is responsible for determining the need to employ foreign workers according to the above regulations.

Report on the use of foreign workers

In addition to the obligation to periodically report every 6 months, 1 year, and irregularly on the employment situation of employees, the new decree adds regulations on reporting cases for foreign workers working for an employer in many provinces to meet the need for authority management in this case. Specifically:

• Report executor: the employers;
• Reporting form: Report on the situation of employees coming to work via electronic environment to the Ministry of Labor, War Invalids and Social Affairs and the Department of Labor, War Invalids and Social Affairs where foreign workers come to work according to Form No. 17/PLI Appendix I issued attached to Decree 152/2020/ND-CP.
• Time limit: within 3 working days from the date the foreign worker starts working.

Changes regarding work permits

The changes of Decree 70/2023/ND-CP are detailed in the article New points of Decree 70/2023/ND-CP related to work permit in Vietnam of Viet An Law. Overall, some important new points include:

• Foreign workers married to Vietnamese people and living in Vietnamese territory are no longer exempt from the work permit exemption confirmation procedure, meaning they will still have to go through the confirmation procedure for non-citizens. The work permit must be issued at least 10 days in advance from the date the foreign worker starts working instead of just giving notice as before.
• In case a foreign worker works for an employer in multiple locations, the work permit application must fully list the work locations.
• Supplement licensing documents in new special cases for foreign workers who are experts and technical workers who have been granted a work permit and have had it extended once but wish to continue working with the company. same job position and job title as stated in the work permit.
• New regulations on work permit forms and electronic copies of permits.
• Changes in dossiers for new issuance, re-issuance, and extension of work permits.

Changes in management authority and licensing

Provincial People’s Committee

The authority to receive reports on the need to use foreign workers requests to recruit foreign workers, and approve the use of workers of the Provincial People’s Committee has been completely transferred to the specialized agency. The responsibility is the Department of Labor, War Invalids and Social Affairs in addition to the main authority of the Ministry of Labor, War Invalids and Social Affairs (Department of Employment).

Accordingly, in Article 30, the People’s Committee is no longer responsible for:

• Direct local agencies and organizations to introduce and supply Vietnamese labor to contractors;
• Decide to allow contractors to recruit foreign workers for each job position that cannot recruit Vietnamese workers in the area;
• Approve job positions that employ foreign workers in the area or assign them to authorized agencies.

Industrial park management board

In addition, Article 1.14 of Decree 70/2023/ND-CP also abolished point a, clause 6a, Article 30 of Decree 152/2020/ND-CP, the authority of the industrial park management board corresponding to the provisions in the Decree. 35/2022/ND-CP in Article 6 8, also abolishes the right to:

• Issuing, re-issuing, extending, revoking work permits, and certifying that foreign workers are not subject to work permits for foreigners working in industrial parks and economic zones, and
• Receive reports on the use of foreign workers, and
• Receive explanatory reports from businesses in industrial parks and economic zones about the need to employ foreigners for each job position that Vietnamese people cannot meet.

Thus, procedures related to work permits are currently only carried out at the Ministry or Department of Labor – Invalids and Social Affairs where the foreign worker is expected to work.

The division of authority between the Ministry and the Department was also supplemented. Specifically, the Ministry of Labor – Invalids and Social Affairs will carry out procedures related to the case of employees “Working for one employer in many provinces and centrally run cities”, in addition to cases related to public organizations as prescribed in the old Decree.

The organization is decentralized and authorized

The new Decree also abolishes the authority of ” Organizations that are empowered by the Department of Labor – Invalids and Social Affairs through delegation, authorization, assignment, commission or procurement” in recruiting and managing Vietnamese workers. Nam works for foreign organizations and individuals to centralize authority for the Department of Labor – Invalids and Social Affairs. The removal of this hierarchical mechanism will facilitate the management, inspection, and supervision of recruitment and management of Vietnamese workers working for foreign countries.

Above are some updated contents on new points of Decree 70/2023/ND-CP amending Decree 152/2020/ND-CP regulating foreign workers working in Vietnam covered by Viet An Law. If you need to renew, re-issue, or extend a Work Permit or related procedures, please contact Viet An Law for the best support.