The Ministry of Industry and Trade (MOIT) issued Circular No. 41/2014/TT-BCT (5 November 2014) on bases and procedures for determining that a foreign employee internally transferring within an enterprise belonging to one of eleven services in the list of service commitments of Viet Nam on the WTO (Service Commitment List) is not required to obtain a work permit.
General provisions
1. The foreign employee is a manager, executive director, expert or technician temporarily transferred within the enterprise to its commercial presence in Viet Nam and recruited by the foreign enterprise at least twelve months prior to the transfer.
2. The Service Commitment List comprises eleven service sectors: business, information, construction, distribution, education, environment, finance, health, tourism, culture and entertainment and transportation services.
3. The commercial presence in Viet Nam comprises the forms of business co-operation contract, joint venture enterprise or 100 per cent foreign invested enterprise, and foreign enterprise's representative office or branch in Viet Nam.
Bases to determine foreign employees not required to obtain work permit
The bases to determine that the foreign employee is a manager, executive director, an expert or technician internally to be transferred within enterprise belonging to one of eleven services in the Service Commitment List comprise:
1. The foreign enterprise has already established a commercial presence in Viet Nam;
2. The foreign enterprise's commercial presence in Viet Nam operates in one of eleven service sectors;
3. The manager, executive director, expert or technician was recruited by the foreign enterprise at least twelve months prior to being appointed to come to Viet Nam to work in the commercial presence.
Procedures to determine foreign employees not required to obtain work permit
1. Application dossiers for proving that the foreign employee internally transferred within the enterprise belonging to one of eleven service sectors in the Service Commitment List is not required to obtain a work permit comprise:
(1) The foreign enterprise's official letter appointing the foreign employee to work in Viet Nam, and specifying the working duration;
(2) Document certifying that the foreign employee is a manager, executive director, expert or technician;
(3) Document proving that the foreign employee coming to work in Viet Nam was recruited by the foreign enterprise at least twelve months prior to the appointment.
(4) Document proving the commercial presence of the foreign enterprise in Viet Nam, such as investment licence, investment certificate, business registration certificate, enterprise registration certificate, or licence for establishment of the representative office or branch issued by the competent authority under the law.
2. The employer must directly submit a written request to the Department of Labour, War Invalid and Social Affairs (DOLISA) to determine that the foreign employee is in the category not required to obtain a work permit.
3. If DOLISA is unable to determine that the foreign employee is internally transferred within an enterprise belonging to one of the eleven service sectors, DOLISA must send a written request to MOIT for an opinion. MOIT must provide a written response confirming whether the operation of the commercial presence in Viet Nam belongs to one of eleven service sectors within three working days after receipt of DOLISA's request.
4. If the foreign employer disagrees with DOLISA's refusal, the foreign employer may submit a request to MOIT for its opinion, accompanied by DOLISA's response received by the foreign employer and the documents mentioned in section 1 above. MOIT must send DOLISA its answer about whether the operation of the commercial presence in Viet Nam belongs to one of the eleven service sectors, in addition to submitting a copy to the foreign employer. Pursuant to MOIT confirmation, DOLISA must reconsider whether the foreign employee is required to obtain a work permit.
This Circular takes effect on December 22. — MAI COUNSEL