CIRCULAR Detailing the basis and procedure to certify that a foreign employee is an intra-corporate transferee and exempt from Work permit

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1 MINISTRY OF INDUSTRY AND TRADE SOCIALIST REPUBLIC OF VIETNAM Independence Freedom - Happiness No. /TT-BCT Hanoi, date month year 2013 CIRCULAR Detailing the basis and procedure to certify that a foreign employee is an intra-corporate transferee and exempt from Work permit Pursuant to Decree No. 95/2012/ND-CP dated 12 th November 2012 of the Government stipulating the function, responsibilities, powers and organizational structure of the Ministry of Industry and Trade; Pursuant to Decree No. 102/2013/ND-CP dated 5 th September 2013 of the Government detailing the implementation of a number of Labour Code provisions on foreign nationals working in Vietnam; Upon the request from Director General of Planning Department; The Ministry of Industry and Trade (MOIT) issues Circular detailing provisions on foreign employees who are intra-corporate transferees and exempt from Work permit as stipulated in Decree No. 102/2013/ND-CP dated 5 th September 2013 of the Government detailing the implementation of a number of Labour Code provisions on foreign nationals working in Vietnam as follows: Chapter I GENERAL PROVISIONS Article 1. Scope and Subjects of Application This Circular details the basis and procedure to certify that a foreign employee is exempt from work permit, given being an intra-corporate transferee of enterprises which have commercial presence in Vietnam and operate in sectors and sub-sectors belonging to 11 sectors listed in Vietnam s WTO Schedule of Specific Commitments in Services. Article 2. Interpretation of terms The terms used in this Circular are construed as follows: 1. Foreign employees considered as intra-corporate transferees are: Managers, executives, specialists and technical employees of a foreign enterprise which has established a commercial presence in Vietnam and who

2 have been previously employed by the foreign enterprise for at least 12 months. In which: - Managers and executives are those who primarily direct the management of the foreign enterprises which have established commercial presence in Viet Nam, receiving general supervision or direction from the board of directors or stockholders of the business or their equivalent. Management of an enterprise includes directing the enterprise or a department or subdivision of the enterprise and its commercial presence; supervising and controlling the work of other supervisory, professional or managerial employees; having the authority to hire and fire or recommend hiring, firing or other personnel actions. These managers and executives do not directly perform tasks concerning the actual supply of the services of the enterprise and its commercial presence. - Foreign specialists are those who possess an engineer s, bachelor s degree or higher degree or its equivalent and have at least 05 years of experience in their majors. - Foreign technical employees are those who have been trained in technical majors and have at least 03 years of experience in their majors. 2. Service sectors as stipulated in Article 1 includes: Business services, communication services, construction services, distribution services, educational services, environmental services, financial services, health related services, tourism and travel services, recreational services and transport services. 3. Service providers commercial presence in Vietnam includes: venture enterprise, 100% foreign invested enterprise, participation in a foreign invested joint stock enterprise that are established and operate in compliance with Enterprise Law, Investment Law, or international treaties to which the Socialist Republic of Vietnam is a signatory. Chapter II BASIS AND PROCEDURE TO CERTIFY THAT A FOREIGN EMPLOYEE IS AN INTRA-CORPORATE TRANSFEREE AND EXEMPT FROM WORK PERMIT Article 3. Issuance Procedure of the Document certifying that a foreign employee is an intra-corporate transferee and from work permit 1. Departments of Labours, Invalids and Social Affairs (DELISA) in provinces and central-affiliated cities have the authority to certify that a foreign employee is exempt from work permit. 2. Employer must submit application dossier (directly or via post) at least 15 working days before the first day its foreign employee commences his/her position, requesting DELISA of the local where the foreign employee

3 works on a regular basis to certify that this foreign employee is exempt from work permit. 3. The dossier required to certify that a foreign employee is an intracoporate transferee and exempt from work permit includes: a) Request form MĐ-1 issued in attachment to this Circular. b) Profile of the foreign employee, including: last name, first name; age; gender; nationality; passport number; starting and ending date of working; working position. c) Documents to prove that the foreign employee is eligible for work permit exemption: - Assignment document from the foreign enterprise. - Document to prove that the foreign national has been previously employed by the foreign enterprise for at least 12 months. - Educational, professional or skill certificate(s) of the intra-corporate transferee to prove that their knowledge and professional skills match the commercial presence licensed operating sector. This provision is only applicable to intra-corporate transferees who are specialists. - Document to prove that the commercial presence employing intracorporate transferees belongs to this Circular s Scope of Application, including: Investment Certification, Business License. These supporting documents shall be provided in 01 original or 01 copy; those prepared in foreign language must be translated into Vietnamese and notarised in compliance with Vietnamese laws. 4. Within 05 working days, since the receipt of adequate valid dossier, DELISA shall issue and send to applicants the Document certifying that a foreign employee is an intra-corporate transferee and exempt from work permit Form GXN issued in attachement to this Circular. In the event of refusal, DELISA must have a written notification sent to applicants Form TB issued in attachement to this Circular. Article 4. Validity of the Certification The document certifying that a foreign employee is an intra-corporate tranferee and exempt from work poermit (hereafter referred to as Certification) has maximum validity of 03 years, under the condition that it does not exceed the remaining validity of Investment Certificate, Business License of the commercial presence for which the foreign employee is working.

4 Article 5. Amendment Procedure of the Certification 1. The Certification is eligible for amendment in case there are changes with its content such as last name, first name; date of birth; nationality; passport number; working location of the foreign employee. 2. Amendment dossier includes: a) Request form MĐ-2 attached to this Circular; - Document to prove the change of foreign employee s last name, first name; date of birth; nationality; passport number; working location. The document shall be provided in 01 original or 01 copy; those prepared in foreign language must be translated into Vietnamese and notarised in compliance with Vietnamese laws. - Previously issued Certification (orginal copy). b) Within 05 working days, since the receipt of adequate valid dossier as stipulated in point a, Article 2 of this Circular, DELISA shall issue a new certification, and simultaneously revoke the old one. Article 6. Renewal Procedure of the Certification 1. Within at least 15 days before the Certification s expiration date, the commercial presence employing foreign nationals must submit renewal dossier. 2. The Certification is eligible for renewal if the foreign intra-corporate transferee meets the following conditions: a) Have the demand to continue working in Vietnam as an intracorporate transferee; b) Commit no serious violations of Vietnamese laws. 3. Renewal dossier includes: a) Request form MĐ-3 attached to this Circular; b) Document from the foreign enterprise to prolong the assignment period of the foreign employee at its commercial presence. The document shall be provided in 01 original or 01 copy; those prepared in foreign language must be translated into Vietnamese and notarised in compliance with Vietnamese laws are required. c) Document to prove the operating period of the commercial presence that employs foreign intra-corporate transferees, i.e. most updated version of Investment Certificate, Business License in which the commercial presence s operating period is clearly stated. d) Previously issued certification (orginal copy).

5 4. Within 05 working days, since the receipt of adequate valid dossier as stipulated in term a, Article 2 of this Circular, DELISA shall issue a new certification, and simultaneously revoke the old one. 5. Renewal validity is applied similarly to that of the certification as stipulated in Article 4 of this Circular. Article 7. Re-issuance Procedure of the Certification 1. The certification is eligible for re-issuance in case of loss, wear an tear, burn or destruction of other forms. 2. Re-issuance dossier for cases listed in point a, clause 1 of this Article includes: a) Request form MĐ-2 attached to this Circular; b) Original Certification s remain which is recognisable in case of partial wear and tear, burn or destruction; or a document from police department to certify the report on the certification s loss or a written explanation with employer s guarantee in case of complete wear and tear, burn or destruction. 3. Within 05 working days, since the receipt of adequate valid dossier, DELISA shall issue a new certification with the same content as stated in the old one, and simultaneously revoke the latter. Article 8. Revocation of the Certification 1. Cases where the certification is revoked: a) Content of the dossier applied for certification issuance, re-issuance is forgery; b) The Certification has already expired; c) Foreign employees or the commercial presence that employs foreign nationals do not comply with the content of issued work permit; d) Labour contract is terminated; đ) Foreign enterprise has written notification about the termination of its assigning foreign employees to work in Vietnam; e) Commercial presence that employs foreign nationals terminates the contract; g) Foreign employees are declared with imprisonment, death or missing by the Court; k) Authorised agencies, organisations make written request for revoking the certification due to the foreign employee violation of Vietnamese laws. 2. DELISA has the power to revoke previously issued certification.

6 3. Foreign employee whose certification has been revoked must apply for work permit as stipulated in Decree 102/2013/ND-CP dated September 5, Chapter IV IMPLEMENTATION Article 9. Responsibilities of People s Committees in provinces and central-affiliated cities 1. To direct local functional agencies to disseminate the laws; examine, inspect; handle cases where provisions on the employment and administration of foreign nationals working in the area are violated. 2. To direct local DELISA and relevant agencies, organisations in the administration of foreign employees who are exempt from work permit. Article 10. Responsibilities of Departments of Labour, Invalids and Social Affairs 1. To organise the promulgation and dissemination of Vietnam s labour law provisions towards enterprises, organisations, employees in the area. 2. To receive dossier and grant certification. To keep track and provide employers with written receipt when receiving the dossier. The receipt to clearly state the date/month/year when dossier and all the included documents are received, as well as the deadline for feedback. To set up archive for the certification. 3. To guide, examine, inspect the implementation of law provisions regulating enterprises employment and administration of foreign nationals working in Vietnam; cases where the certification expires or becomes invalid. 4. In the event of any obstacles during the implementation, agencies should report to DELISA for timely guidance and amendment. Article 11. Responsibilities of Foreign Service Providers 1. To comply with Vietnam s labour law provisions and other relevant law provisions of Vietnam. 3. To submit dossier for the certification to be granted to foreign employees working in Vietnam. 4. To manage profiles of foreign employees working in Vietnam, and keep adding in documents related to the foreign employees during their working in Vietnam on a regular basis. 5. To report on the profiles of foreign employees working in Vietnam who are exempt from work permit.

7 Article 12. Interpretation and guidance of WTO Service Commitments Ministry of Industry and Trade (MOIT) has the responsibility to provide interpretation and guidance for the sectors and sub-sectors stipulated in Vietnam s WTO Schedule of Specific Commitments in Services. MOIT shall be in charge of handling all the concerns related to the identification and interpretation of service sectors and sub-sectors regulated in this Circular. Article 13. Periodic Reporting Mechanism 1. In case of necessity for the purpose of preparing statistics, DELISA can require foreign service providers commercial presence in Vietnam to report on the use of foreign employees who are intra-corporate transferees in accordance with Vietnam s laws. 2. On a 06-month basis, before the date of January 1 and July 15 annually, DELISA shall report to MOIT and MOLISA on the implementation status of the procedure certifying that a foreign employee is an intra-corporate transferee and exempt from work permit, and shall put forward recommendations, proposals, using Form BC issued in attachment to this Circular. Article 14. Implementing Effect 1. This Circular shall come into effect since date...month...year. 2. In the event of any obstabcles during the implementation, agencies should report to DELISA for timely guidance and amendment./. ON BEHALF OF THE MINISTER VICE MINISTER