Circular 35/2016/TT-BCT

CIRCULAR

Prescribing the identification of foreign workers moving within enterprises operating in 11 service sectors in Vietnam’s Schedule of Specific Commitments in Services to the World Trade Organization, who are not subject to work permit

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Pursuant to the Government’s Decree No. 95/2012/ND-CP of December 12, 2012, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government’s Decree No. 11/2016/ND-CP of February 3, 2016, detailing a number of articles of the Labor Code regarding foreigners working in Vietnam;

At the proposal of the Director of the Planning Department,

The Minister of Industry and Trade promulgates the Circular prescribing the identification of foreign workers moving within enterprises operating in 11 service sectors in Vietnam’s Schedule of Specific Commitments in Services to the World Trade Organization, who are not subject to work permit.

Article 1. Scope of regulation and subjects of application

1. This Circular prescribes the identification of foreign workers moving within enterprises operating in 11 service sectors in Vietnam’s Schedule of Specific Commitments in Services to the World Trade Organization (below referred to as the WTO Schedule of Commitments in Services), who are not subject to work permit.

2. This Circular applies to foreign workers moving within their enterprises (including managers, executives, specialists and technicians), employers of such foreign workers and related organizations and individuals.

Article 2. Commercial presence      

Commercial presence prescribed in Clause 1, Article 3 of the Government’s Decree No. 11/2016/ND-CP of February 3, 2016, detailing a number of articles of the Labor Code regarding foreigners working in Vietnam (below referred to Decree No. 11/2016/ND-CP) may take the following forms:

a/ Foreign-invested economic institution;

b/ Representative office or branch of foreign trader in Vietnam;

c/ Executive office of foreign investor under business cooperation contract.

Article 3. Grounds for identification of foreign workers moving within enterprises operating in 11 service sectors in the WTO Schedule of Commitments in Services, who are not subject to work permit

1. Grounds for identifying a foreign worker as a manager, executive or specialist moving within an enterprise operating in one of 11 service sectors in the WTO Schedule of Commitments in Services, who is not subject to work permit under Point a, Clause 2, Article 7 of Decree No. 11/2016/ND-CP, include:

a/ The foreign enterprise has established commercial presence in the Vietnamese territory;

b/ The foreign enterprise’s commercial presence in the Vietnamese territory operates within the scope of 11 service sectors prescribed in Appendix I to this Circular;

c/ The foreign worker has been employed by the foreign enterprise for at least 12 months before he/she is assigned to Vietnam to work at its commercial presence in the Vietnamese territory.

2. Grounds for identifying a foreign worker as a technician moving within an enterprise operating in one of 11 service sectors in the WTO Schedule of Commitments in Services, who is not subject to work permit under Point a, Clause 2, Article 7 of Decree No. 11/2016/ND-CP, include:

a/ The foreign enterprise has established commercial presence in the Vietnamese territory;

b/ The foreign enterprise’s commercial presence in the Vietnamese territory operates within the scope of 11 service sectors prescribed in Appendix II to this Circular;

c/ The foreign worker has been employed by the foreign enterprise for at least 12 months before he/she is assigned to Vietnam to work at its commercial presence in the Vietnamese territory.

Article 4. Identification of foreign workers moving within enterprises operating in 11 service sectors in the WTO Schedule of Commitments in Services

1. The papers proving that a foreign worker is not subject to work permits prescribed at Point c, Clause 3, Article 8 of Decree No. 11/2016/ND-CP include:

a/ The foreign enterprise’s document assigning the foreign worker to work at its commercial presence in the Vietnamese territory, clearly stating his/her position, job title and work duration;

b/ Documents proving the foreign worker is a specialist, which must comply with Clause 2, Article 6 of Circular No. 40/2016/TT-BLDTBXH of October 25, 2016, of the Ministry of Labor, War Invalids and Social Affairs guiding a number of articles of Decree No. 11/2016/ND-CP (below referred to as Circular No. 40/2016/TT-BLDTBXH);

c/ Documents proving the foreigner is a technician, which must comply with Clause 3, Article 6 of Circular No. 40/2016/TT-BLDTBXH;

d/ Documents proving that the foreign worker has been employed by the foreign enterprise for at least 12 months before he/she is assigned to work at its commercial presence in the Vietnam territory, which must comply with Clause 4, Article 6 of Circular No. 40/2016/TT-BLDTBXH;

dd/ A document proving that the foreign enterprise’s commercial presence in the Vietnamese territory operates in one of the 11 service sectors specified in the Appendices to this Circular, which may be the enterprise registration certificate or another paper of equivalent validity or representative office or branch establishment permit granted by a competent Vietnamese agency.

2. The certification of foreign workers moving within enterprises operating in 11 service sectors on the WTO Schedule of Commitments in Services, who are not subject to work permit, must comply with Decree No. 11/2016/ND-CP and Circular No. 40/2016/TT-BLDTBXH.

Article 5. Effect

1. This Circular takes effect on February 10, 2017.

2. This Circular annuls Circular No. 41/2014/TT-BCT of November 5, 2014, prescribing grounds and procedures for identification of foreign workers moving within enterprises operating in 11 service sectors in Vietnam’s Schedule of Specific Commitments in Services to the World Trade Organization, who are not subject to work permit.

3. Any problems encountered in the course of implementing this Circular should promptly reported to the Ministry of Industry and Trade (the Planning Department) for timely guidance and settlement./.