Determine The Demand For Using Foreign Laborers In Vietnam
According to Article 4 of Decree No. 152/2020/NĐ-CP dated December 30, 2020 (“Decree 152”), the employer is responsible for determining the demand for using foreign labor in their company and reports the Demand to the Ministry of Labor – War Invalids and Social Affairs or the People’s Committee of the province where the foreign labors are expected to work. The company must submit the Explanation for demanding using foreign laborers at least 30 days before the date the foreigners are expected to be employed. It is the preliminary step in recruiting foreign laborers for the company
The Application for the report of the Demand using foreign labor is as follows:
1/Form No. 01/PLI of Decree 152;
2/The certified copy of the Business Registration Certificate;
3/ The certified copy of the Investment Registration Certificate(if any);
4/ The company’s charter.
The pictures of the company’s operation are required by the Department of Labor – War Invalids and Social Affairs in some provinces.
In the process of filling out Form No. No. 01/PLI, the company should concentrate on explaining why Vietnamese laborers are not employed in positions of foreign labor, and the company shall explain ain s much as position. Besides, the company has to save/keep the proof and evidence for recruitment of that position (but no Vietnamese labor applied for the position, or the Vietnamese labor does not meet the conditions to be employed) and attach it to the Application.
Within ten hours from the day the competent agency receives the application, they will have the Approval or no Approval for an explanation of demand using the foreign labor.
The employer is not required to determine the demand for foreign workers in cases:
1/ He/she is a limited liability company's owner or capital contributor with a capital contribution value of at least 3 billion dongs.
2. He/she 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 dongs.
3. He/she enters Vietnam to hold the position of a manager, executive, expert, or technical worker for a period of work of fewer than 30 days and up to 3 times a year.
4. He/she enters Vietnam to implement an international agreement to which a central or provincial authority is a signatory as per the law
5. He/she is a student studying at a foreign school or training institution with a probation agreement with an agency, organization, or enterprise in Vietnam; or a probationer or apprentice on a Vietnam sea-going ship.
6. He/she is a relative of a member of the foreign representative body in Vietnam as specified in point l clause 1 Article 2 hereof.
7. He/she obtains an official passport to work for a regulatory, political, or socio-political agency.
8. Is the manager of a representative office, project, or the person in charge of the operation of an international organization or a foreign non-governmental organization in Vietnam.
9. Enters Vietnam for a period of fewer than 03 months to do marketing of a service.
10. Enters Vietnam for a period of fewer than 03 months to resolve a complicated technical or technological issue which (i) affects or threatens to affect the business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.
In the above cases, the company does not need to report the Explanation for using the foreigners to the Department of Labor – War Invalids and Social Affairs before the foreigners work in the Company.
Reporting the Explanation for demanding the use of foreign labor is the first step in the process of applying for a work permit. The Company has to apply to the competence agency at least 30 days before the foreigners work in the company.
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