Thanh Cong Manufacture and Trade Co., Ltd. (“Thanh Cong Company”) established in 2019 is an enterprise operating in computer software production. Thanh Cong Company is invested by a Korean investor – Mr. Kim Young Sun who contributes 51% of the charter capital. Thanh Cong Company plans to recruit 02 Korean experts to perform a computer software development project.

Thanh Cong Company would like to consult a law firm about procedures related to recruiting the 02 Korean experts, and conditions on the application for work permit and residence card for Mr. Kim Young Sun if he holds the position of legal representative (if necessary).

Our advice:

Thank you for sending your consultancy request to Bizlawyer & Partners Limited Law Firm (“Bizlawyer”). According to the above information, Your Company has two consultancy requests that need to consult Bizlawyer.

First, for the procedure related to the recruitment of foreign workers, Bizlawyer would like to give advice in accordance with the current law as follows:

Conditions for recruiting foreign workers:

Article 170 of the Labor Code 2012 stipulates the conditions for recruiting foreign employee as follows:

“1. Enterprise, state authority, organization, individual and domestic contractor may only recruit foreign employee to work as manager, executive, expert and technical workers that Vietnamese employee is not meet under the requirement of production and business.

2. Enterprise, state authority, organization, individual and foreign contractor, before recruiting foreign employee to work in the territory of Vietnam, must explain their employment needs and be approved by written of competent state authority”

Thus, according to the regulation of the Labor Code, the positions that are permitted to be available for foreign workers just include expert, manager, executive and technical worker. Therefore, the recruiment of the 02 foreign experts of Thanh Cong company is suitable for the law requirements.

Required procedures:

(1) Report of explaining the needs of foreign employee recruitment

At least 30 days prior to the expected date of recruiting foreign employees, the Company must send a written which explain the needs of foreign employees recruitment to the provincial/municipal People’s Committee (where the employees work) and obtain the approval of competent state authority to recruit foreign employees.

(2) Application for Work Permit

Article 169 of the Labor Code 2012 stipulates that the condition of foreign employees working in Vietnam is “Having a work permit granted by a Vietnamese competent state authority, except for cases in accordance with Article 172 of this Code.”

Article 9 of Decree 11/2016 / ND-CP stipulates conditions for issuance of work permits, including:

• Having full legal capacity for civil acts;
• Having good health appropriate for the work requirements;
• Holding manager, executive director, expert or technical labor position;
• Not being convicted of a crime or be subject to investigation for a criminal offense in accordance with the law of Vietnam and the law of the foreign country

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Therefore, after the provincial/municipal People’s Committee approves of the Company’s recruiting foreign employee to work at the Company, the Company needs to request the municipal Department of Labor, War Invalids and Social Affairs to grant work permit for foreign employee when they meet the conditions specified in Article 9 of Decree 11/2016 / ND-CP above.

Second, regarding the consultancy request whether foreigner who is the legal representative of an enterprise is required to apply for a work permit, Bizlawyer has the opinion as follows:

Article 172 of the Labor Code stipulates that the following types of foreigner will not be required a work permit when working in Vietnam:

“1. Capital contributing member or owner of a limited liability company.

2. Member of the board of management of a shareholding company.

3. Head of a representative office or of a project of an international organization or non-governmental organization in Vietnam.

4. Entering Vietnam for a period under three (3) months in order to offer services.

5. Entering Vietnam for a period under three (3) months in order to resolve an incident [breakdown] or technically or technologically complex situation arising and affecting, or with the risk of affecting production or business with which Vietnamese experts or foreign experts currently in Vietnam are unable to deal.

6. A foreign lawyer issued with a certificate to practice law in Vietnam in accordance with the law on lawyers.

7. In accordance with provisions of an international treaty of which Vietnam is a member.

8. A student studying in Vietnam is permitted to work in Vietnam, but the employer must provide seven days advance notice to the provincial State administrative authority for labour.

9. In other cases pursuant to Government regulations”

Therefore, Mr. Kim Young Sun is a capital-contributing member (contributing 51% of the charter capital) in a limited liability company and is the legal representative of the enterprise. Therefore, Mr. Kim Young Sun is not required to apply for a work permit in accordance with Article 172. In this case, Mr.Kim Young Sun must perform the procedure for notifying that he is not required to apply for work permit.

At the same time, Article 13 of the Enterprise Law regulates that “Enterprises must ensure that at least one legal representative resides in Vietnam“, therefore the legal representative must apply for a Temporary Residence Card with Immigration management agencies to reside for a definite time in Vietnam.

Conclusion

If our clients have any questions or have demand of more detailed information on investment forms and procedure for applying for temporary residence card for foreigners, please contact us via our email: Info@bizlawyer.vn or Hotline Call: 086.888.1900 for timely advice and support.