At present, regulations on the expatriate employees working in Vietnam have been sufficiently covered and governed by the Labor Code and the guiding legal documents thereof. Accordingly, the expatriate employees moving to Vietnam for employment are only allowed under one of the forms provided in Article 2 of Decree 11/2016/ND-CP (Decree 11), effective as of April 1st, 2016. In this article, Luat Viet Advocates and Solicitors (LuatViet) is going to focus on some typical and common forms of working as foreign experts, technicians and managers.
In respect of foreign experts
A foreign expert working in Vietnam is defined to the one who is categorized into one of the following circumstances:
- Having a document certifying that he/she is an expert of an overseas agency, organization or enterprise; or
- Having a bachelor’s degree or equivalent or higher qualifications provided that he/she has worked at least three-year experience in his/her training field in corresponding with the job position that he/she shall be appointed in Vietnam and other special cases upon the consideration and decision of the Prime Minister.
Compared with the old regulation [Decree 102/2010/ND-CP providing foreign experts to have at least five-year experience], this Decree 11 has reduced such condition of experience, but more specifically provided that the experience is required to be in his/her training field and in line with the job position that he/she shall be appointed in Vietnam.
With regard to the written document certifying that the foreign worker is an expert, not only a bachelor’s degree or equivalent or higher qualifications and having at least three-year experience in his/her training field in corresponding with the job position that he/she shall be appointed in Vietnam are accepted, such expert is also considered to be satisfied if he can present a written confirmation of being an expert granted by the oversea agency, organization or enterprise (where he/she worked earlier) by Circular 40/2016/TT-BLDTBXH (Circular 40) guiding Decree 11. The mentioned confirmation of being an expert is required to specify: the full name of the agency/organization/enterprise, full information of the awarded expert including name, date of birth, nationality and major relevant to job position expected to be taken in Vietnam.
Until now, Decree 11 and the guiding documents thereof have not provided a specific template of such confirmation yet. Hence, the oversea agency, organization or enterprise can flexibly elaborate a written confirmation for its employees as long as the above-mentioned main contents in Circular 40 shall be included.
In respect of foreign technician
Foreign technicians are defined as workers who have undergone training in technique or other majors for at least one year and have worked for at least three years in their training fields.
With regard to proof of technician, Decree 11 and Circular 40 have required the documents as follows:
- Certificates or documents certifying that such foreign worker has been trained for at least one year and his/her major is relevant to the job(s) he is expected to be taken in Vietnam; and
- Documents certifying that the foreign worker has at least three years of experience in relevant majors.
In this regard, a question has been raised whether one year of training and three years of working must be separated or possibly combined? Is it possible in the way that one year of training can be done in/during three years of working in the relevant major? On account of the fact that some oversea agencies, organizations, or enterprises have policy to train their employees during their working time, thus the separated or combined calculation is allowed or not will be based on case by case by the Vietnamese competent authority.
In respect of foreign manager
Managers are defined in Decree 11 as persons in charge of managing the companies as regulated in Clause 18 Article 4 of the Enterprise Law or heads or vice-heads of agencies or organizations.
In this regard, both Decree 11 and Circular 40 have not specifically prescribed the document certifying that an expatriate employee a manager. However, from our practice experience together with reference of competent authority’s advices, likewise foreign expert’s requirement for a written confirmation, such manager also possibly presents a written confirmation elaborated and executed by oversea agency, organization or enterprise where he/she worked earlier relevant to the job position expected to be taken in Vietnam. This written confirmation is required to cover the information as specified in the case of expert.
In particular, for such kind of position, the foreign labor shall have worked as a manager in an oversea agency, organization or enterprise before coming to Vietnam to take position of manager. There is no an exceptional case allowing the foreign labor who earlier worked in other position to take the managing position in Vietnamese agency, organization or enterprise.
Hopefully, coming along with the updated information on application of Decree 11 as above, LuatViet has helped our esteemed enterprises more understand the regulations on the form of working of the expatriate employees in Vietnam as the foreign experts, technicians and managers.
 Clause 18 – Article 4 – Enterprise Law 2014: 18. Managers of an enterprise means managers of a company and managers of a private enterprise, including owner of a private enterprise, general partner, chairperson of the Members’ Council, member of the Members’ Council, president of a company, chairperson of the Board of Directors, member of the Board of Directors, director or general director and persons holding other managerial positions who are competent to enter into the company’s transactions on its behalf in accordance with the company charter.