Circular 31/2011/tt-Bldtbxh: Guide The Implementation Of A Number Of Articles Of Decree No. 34/2008/nd-Cp Dated 25 March 2008 And The Government's Decree No. 46/2010/nd-Cp On January 17, 2011.

Original Language Title: Thông tư liên tịch 31/2011/TT-BLĐTBXH: Hướng dẫn thi hành một số điều của Nghị định số 34/2008/NĐ-CP ngày 25 tháng 3 năm 2008 của Chính phủ và Nghị định số 46/2011/NĐ-CP ngày 17 tháng 6 năm 2011 của ...

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CIRCULAR guiding the implementation of a number of articles of Decree No. 34/2008/ND-CP dated 25 March 2008 and the Government's Decree No. 46/2010/ND-CP on January 17, 2011 the Government's amendments and supplements to some articles of Decree No. 34/2008/ND-CP dated 25 March 2008 of the Government regulations on recruitment and management of foreigners working in Vietnam _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
 
Pursuant to Decree No. 186/2007/ND-CP on December 25, 2007 of the Government functions, tasks, powers and organizational structure of the Ministry of labor, invalids and Social Affairs;
Pursuant to Decree No. 34/2008/ND-CP dated 25 March 2008 of the Government regulations on recruitment and management of foreigners working in Vietnam;
Pursuant to Decree No. 46/2010/ND-CP on January 17, 2011 the Government's amendments and supplements to some articles of Decree No. 34/2008/ND-CP dated 25 March 2008 of the Government regulations on recruitment and management of foreigners working in Vietnam;
The Ministry of labor, invalids and Social Affairs guidelines for implementing a number of articles of Decree No. 34/2008/ND-CP dated 25 March 2008 of the Government regulations on recruitment and management of foreigners working in Vietnam and Decree No. 46/2010/ND-CP on January 17, 2011 the Government's modification supplement some articles of Decree No. 34/2008/ND-CP dated 25 March 2008 of the Government regulations on recruitment and management of foreigners working in Vietnam (hereafter abbreviated as Decree No. 34/2008/ND-CP has been modified and supplemented) as follows: chapter I GENERAL PROVISIONS article 1. The range and scope of application objects and objects of this circular is the range object and apply the provisions of article 1 of Decree No. 34/2008/ND-CP has been modified, added, investors and foreign contractors. Objects as defined in points a and l item 2 article 1 of Decree 34/2008/ND-CP has been modified, added, the Guide as follows: 1. The business operating under the enterprise law, investment law, as defined in point a of paragraph 2 article 1 of Decree No. 34/2008/ND-CP has been modified supplements include: a) State company operating under the State Enterprise Law 2003 currently continue to operate according to the provisions of article 166 of business law on November 29, 2005;
b) limited liability companies, joint stock companies, private businesses and partnerships have been established in accordance with the corporate law in 1999 currently continue to operate under the provisions of paragraph 1 to article 170 of the enterprise law on November 29, 2005;
c) business for foreign investment was granted the investment license under the law on foreign investment in Vietnam, including:-business venture;
-100% foreign-owned enterprises;
-Joint stock company foreign investment established by Decree No. 38/2003/ND-CP on 15/4/2003 by the Government on the transition some business for foreign capital to operate in the form of joint-stock companies;
-Investment project in the form of business cooperation contract was granted the investment license under the provisions of the law on foreign investment in Vietnam.
2. The Association, business association was established under the provisions of the law of Vietnam as defined in point 1 of Article 2, paragraph l Decree No. 34/2008/ND-CP has been modified, added, include: a) Business Associations established and operating under the provisions of Decree No. 45/2010/ND-CP dated 21/4/2010 of the Government regulation about the Organization , operation and management of the Association;
b) foreign business associations established and operating under the provisions of Decree No. 8/1998/ND-CP of December 22, 1998 the Government issued regulations establishing foreign business association in Vietnam.
Chapter II RECRUITMENT and MANAGEMENT of FOREIGNERS WORKING in VIETNAM, article 2. Recruiting foreigners working in Vietnam in the form of labour contract 1. The vote registration of alien workers under the provisions of paragraph 2 point a article 4 of Decree No. 34/2008/ND-CP has been modified, additional follow model No. 1 attached to this circular.
2. The certificate of qualification, high technology of the alien as defined in paragraph 2 of article 4 d of Decree 34/2008/ND-CP has been modified, additional text is certified on the professional level, of foreigners, including: certificate or diploma University degree or postgraduate matching job positions that the water also expected to assume.
For some occupations, jobs, certification of qualification, high-tech foreigners implementation as defined in paragraph 2 of article 4 d of Decree 34/2008/ND-CP has been modified and supplemented.
3. The employer informed the labour recruitment needs Vietnam on the projected recruitment jobs positions foreigners as defined in point a of paragraph 4 Article 4 of Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: a) before recruiting foreigners at least 30 (thirty) days , the employer must notify labour recruitment needs in Vietnam on the projected recruitment jobs positions foreigners on at least 1 (one) of the Central newspaper and at least 1 (one) of the local newspapers by one of the forms is the newspaper article, the newspaper said, newspaper or electronic notice of the contents : the number of vacancies, job positions, professional level, salaries and other earnings, work conditions and some other content if the employer requests.
Cases where the employer has notified at least 2 (two) of the central press and 2 (two) of the local newspapers about the Vietnam labor recruitment pursuant rule that no recruit was then within a period of 36 (thirty six) months since the last announcement, the employers were recruiting foreigners and not inform the labour recruitment needs across the central message and the local newspapers.
b) recommended records issued work permits for foreigners are employed in the form of employment contract according to the provisions of article 4 of Decree No. 34/2008/ND-CP has been modified, added and for foreigners who have been granted work permits as specified in point b of paragraph 3 article 9 of Decree No. 34/2008/ND-CP has been modified additional, it must accompany the text to prove whether the employer has notice of the need to recruit workers to Vietnam on the projected recruitment jobs positions foreigners as defined in point a of paragraph 3 of this article.
4. The papers prescribed at points b, c and d, item 2 article 4 of Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: papers stipulated at points b, c and d, item 2 article 4 of Decree No. 34/2008/ND-CP has been modified additional, in a foreign language must be translated into a South Vietnamese, notarized or attested. The legalize the foreign papers are made in accordance with the law of Vietnam.
5. labor contracts as specified in point d of article 4 paragraph 4 of the Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: after the foreigners were granted work permits, labour users and alien labor contracts must be in writing in accordance with the labor law before the expected day of Vietnam working for the employer. Within 5 (five) days as of the working day from the date of delivery of the employment contract, the employer is responsible for sending a copy of the labor contract has committed and snapshot of work permits have been granted to the Agency has granted work permits for foreigners. The content of employment contracts are not contrary to content recorded in the work permit has been granted.
Article 3. Foreigners in Vietnam to make bids or projects of foreign contractors were awarded in Vietnam 1. Employer approach in bidding, records requested by the investor in accordance with paragraph 1 Article 6a of the Decree No. 34/2008/ND-CP has been modified, added, follow the model No. 2 attached to this circular.
2. the foreign contractor reports and recommendations in writing to the Chairman of the provincial people's Committee, the city of centrally prescribed in paragraph 3 Article 6a of the Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: within 30 (thirty) days before foreign contractors make bids or project was awarded, the contractor foreign countries have a responsibility to report and recommendations in writing to the Chairman of the provincial people's Committee, the central cities, where foreign contractors make bids or project has awarded about Vietnam labor team certified by the owner on employers has been declared in the tender the proposed profile, follow the No. 3 sample attached to this circular.
The case of foreign contractors in need of adjustments, additional employees were identified in tenders, records suggested, they must report the Department of labor, invalids and Social Affairs, where foreign contractors make bids or projects have winning bid on adjustable supplementing the needs of employers and of the investor in the form of 4 attached to this circular.
3. Introduce the Vietnam labour supply, as proposed by foreign contractors as defined in paragraph 4 to Article 6a of the Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: within a maximum of 60 (sixty) days from the date the President of the people's Committee the central cities, get the text offer from 500 (five hundred) Vietnam labor over and 30 (thirty) days for the proposal selection under 500 (five hundred) Vietnam labor that does not introduce or supply labour Vietnam was for foreign contractors as suggested above, the Chairman of the provincial people's Committee the central cities, review, the decision allows foreign contractors hired foreigners to positions not work labor recruited Vietnam including: job placement, number, qualifications, experience, job execution time limit.

4. for foreign contractors are implementing the project or package has resembled the earlier Decree No. 46/2010/ND-CP dated 17/6/2011 by the Government take effect (1/8/2011) shall within a period of 30 (thirty) days from the date of this circular effect, foreign bidders must report the status of Vietnam laborers and foreigners are working in the package is or projects awarded include: number, nationality, qualifications, job placement, the number who have been granted work permits, the number of people not subject to licensing and the number of workers who have not made the labor license, stating the reasons and remedies; reported plans to use foreign labor and Vietnam until the end of the project or package with the Chairman of the provincial people's Committee, the central city where make bids or projects have winning bid, which stated the need to recruit Vietnam labor proposal to replace the foreigners are working and the position is expected to recruit foreigners. The case does not introduce or supply labour Vietnam was for foreign contractors, the Chairman of the provincial people's Committee, the central cities of consideration, the decision allows foreign contractors are using foreigners to positions not work labor is Vietnam.
Article 4. Foreigners in Vietnam working to sell foreign service in Vietnam working to sell the service as defined in article 7 of Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: at least 7 (seven) days as of the working day when foreigners to sell the service to notify in writing through the form sent directly or sent by mail, fax to the Department of labor, invalids and Social Affairs where local foreigners expected to sell services with content: name, age, nationality, passport number, start date and end date of work, specific work of foreigners in the form of 5 attached to this circular.
Article 5. Foreigners working in Vietnam must not have work permit 1. The time limit under the 3 (three) months, as defined in point a of paragraph 1 article 9 of Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: time limits under 3 (three) month is defined as the continuous-time since foreigners began entering Vietnam to work for the employers the Vietnam partners, or representative of a foreign non-governmental organizations to that day of the third month minus a day.
Foreigners in Vietnam working with the time limit under the 3 (three) months must comply with the provisions of points a and b of paragraph 4 Article 4 of Decree No. 34/2008/ND-CP has been modified and supplemented.
2. Alien head offices, head of the project office or foreigners held on foreign non-governmental representative mandate for activities in Vietnam under the provisions of point h paragraph 1 article 9 of Decree No. 34/2008/ND-CP has been modified and supplemented as foreigners are defined in the license to set up a representative office License, established Project Office, active license of foreign non-governmental organizations are allowed to establish and operate in accordance with the law of Vietnam.
3. The alien as defined at points b, c and d of paragraph 1 article 9 of Decree No. 34/2008/ND-CP has been modified, then supplements are not granted work permit to work in the business, the organization. The case of the above-mentioned foreigners working in business, other organizations in Vietnam from enough three months or more, they must perform labor license.
Article 6. Work permit form 1. Samples of work permits as specified in clause 2 article 9 of Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: a) Protocol of work permits: permits the size A4 (21 cm x 29.7 cm), consisting of 4 pages; page 1 and page 4 are green peace, plastic; page 2 and page 3 has a white background, pattern pale blue, star-shaped in the middle.
b) content of work permits, according to the model No. 6 attached to this circular.
2. Work permit by the Department of employment in the Ministry of labor, invalids and Social Affairs organized the printing and released.
Article 7. Labor licensing 1. Writing grant proposal of the work permits of employers, the Vietnam partner or representative of a foreign non-governmental organizations in the profile as defined in point a of paragraph 3 article 9 of Decree No. 34/2008/ND-CP has been modified, additional follow model number 7 attached to this circular.
2. Slip the criminal and health certificate as specified in points b and c of paragraph 2 article 4 of Decree No. 34/2008/ND-CP has been modified, additional relevant authorities within a period of 180 (one hundred eighty) days as of submission of the proposal to grant work permits.
3. Where foreigners often work as stipulated in art. 5 article 9 of Decree No. 34/2008/ND-CP has been modified and supplemented to be determined is where foreigners have full time work for the employers or the Vietnam partners, representatives of non-governmental organizations at a foreign province , central cities.
4. Foreigners who have been granted work permits but expired or disabled as specified in point b of paragraph 3 article 9 of Decree No. 34/2008/ND-CP has been modified, needs additional work for another business in the same location of the work recorded in the work permit , within 30 (thirty) days of work permit expired or disabled must have the prescribed documents at points c and d, item 2 article 4 of Decree 34/2008/ND-CP has been modified, added and was granted a work permit or a copy of work permit has been granted.
Article 8. Renewal of work permits 1. Records suggest the extension of work permits for foreigners to work in the form of labour contract as defined in point a of item 2 article 10 of Decree No. 34/2008/ND-CP has been modified, added, include: a) the text of the proposal to renew the work permits of employers who form 8 attached herewith;
b) a copy of the contract of apprenticeship was signed between Vietnam labor to replace the Vietnam labor training work that foreigners are kept or text to prove were performed, the Vietnam labor training plan as specified in paragraph 1 to article 132 of the labour law to replace the jobs that foreigners are. Program content, training plans, including: the number of people who need training in each location of the work, time and form of training, where training and the implementation of training, the training results;
c) copy of the labor contract;
d) work permit has been issued;
2. The records suggest the extension of work permits for foreigners internal migration business, including: a) the proposal to renew the work permits of foreign business representatives has established commercial presence on the territory of Vietnam under model number 8 attached herewith;
b) text to prove foreigners internal migration of businesses working in Vietnam;
c) work permit has been granted.
3. The records suggest the extension of work permits for foreigners as defined in point b of paragraph 2 article 10 of Decree No. 34/2008/ND-CP has been modified, added, include: a) the proposal to renew the work permit of the partner Vietnam form 8 attached herewith;
b) a copy of the contract signed between the Vietnam and the partners;
c) work permit has been granted.
Article 9. Reissued work permits writing grant proposals back to the work permits of foreigners as defined in point a of paragraph 2 article 11 of Decree No. 34/2008/ND-CP has been modified, added, follow the model No. 9 attached to this circular.
Article 10. Using labor license 1. Using labor license as specified in paragraph 1 article 13 of Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: foreigners are responsible for holding work permits have been granted when the licenses are valid. At the latest after 2 (two) days when permits expire, or disable, the alien must file that permits for the employers or the Vietnam partners, representatives of non-governmental organizations abroad.
2. the written notice about the foreigners to work as defined in paragraph 3 of the article 13 of Decree No. 34/2008/ND-CP has been modified, added, the Guide as follows: When a foreigner to work in the province, central cities (not the city, which foreigners often work) from 10 (ten) consecutive days or more, or 30 (three fifty) days carried out 1 (one) year of the employers or the Vietnam partners, representatives of non-governmental organizations abroad must be informed in writing about the foreigners to work, with content: name, age, nationality, passport number, the number of work permits have been issued , the start date and end date of work, work and work of foreigners in the form of 10 attached to this circular and the attached snapshot of work permits have been issued to the Department of labor, invalids and Social Affairs where foreign people to work.
Article 11. Alien's wife, members of diplomatic corps, foreign consulates, representatives of international intergovernmental organizations; students, students practice in corporate, agency, held in Vietnam 1. With regard to the alien's wife, husband of the person enjoying diplomatic immunity privileges, consular work for enterprises, held in Vietnam under the provisions in article 20 paragraph 1 of Decree No. 34/2008/ND-CP has been modified, added, the instructions as follows :

a) in the case of agreements between Vietnam and countries concerned not licensing exemption regulations of labor for the object is the husband, the wife of the foreign agency members, consuls, representatives of international intergovernmental organizations involved in working in Vietnam, the registration records of who comprises the papers specified in point c , d and DD item 2 article 4 of Decree No. 34/2008/ND-CP has been modified, added and attached text copy of the Ministry of Foreign Affairs (Department of State reception) reply diplomatic, foreign consulates, representatives of international intergovernmental organizations on whether foreigners are allowed to work in Vietnam according to the relevant international agreements at the same time present the original to compare.
b) the duration of work permits are issued do not exceed term of stay, husband and wife must not exceed 36 (thirty six) months;
c) labor permit process is done according to the provisions in clause 5 article 9 of Decree No. 34/2008/ND-CP has been modified and supplemented;
d) where foreigners are granted work permits are no longer subject to be allowed to work under an agreement between Vietnam and countries involved, the Ministry of Foreign Affairs (Department of State reception) have written to notify the Department of labor, invalids and Social Affairs has issued work permits it to revoke the permits of this person.
2. for foreign students, students studying at schools, training facilities abroad to Vietnam practice prescribed in article 20 paragraph 1 of Decree No. 34/2008/ND-CP has been modified, additional instructions as follows: Enterprise, agency, organisation in Vietnam have foreign students students are studying at schools, training facilities abroad to practice then before the 7 (seven) days (measured in working days) from the date the student, student internships, the enterprise, agency, organisation got responsibility report cites list horizontally under model number 11 attached to this circular.
Chapter III IMPLEMENTATION article 12. The responsibility of the provincial people's Committee, the city in Central 1. Directed the local authorities organized propaganda, common law; examine, inspect; processed in violation of the rules on recruitment and management of foreign people working in the area.
2. Directs the Department of labor, invalids and Social Affairs and the local authorities, relevant organisations to introduce, supply workers to Vietnam for contractors overseas under the provisions of paragraph 4 to Article 6a of the Decree No. 34/2008/ND-CP has been modified and supplemented.
3. Review, the decision to allow foreign contractors to recruit foreigners into the job placement not Vietnam workers recruited under the provisions of paragraph 4 to Article 6a of the Decree No. 34/2008/ND-CP has been modified and supplemented.
Article 13. The responsibility of the Department of labor, invalids and Social Affairs 1. Advocacy organisation and popularity of the Vietnam labour law for businesses, organizations, investors, contractors and local workers.
2. Receiving records and labor permit, renewal of work permits, work permits to foreigners in accordance with the law. Upon receipt of request work permits, records suggest the extension of work permits, records suggest the labor license again right on the window track and have a receipt given to the employer or the Vietnam partners, representatives of non-governmental organizations abroad. In the receipt must specify day, month, year of receipt, the text in the profile and the time limit for the reply. Save labor license records, records renewal of work permits, records reissued work permits.
3. The Organization made the introduction, supplying workers for the foreign contractors under the direction of the Chairman of the provincial people's Committee, the central cities.
4. Instructions, inspection, inspection of the implementation of the provisions of the law on employment and management of foreign people working in Vietnam's businesses, agencies, organizations, projects, tenders due to foreign contractors winning bid; these cases work permit expired or disabled.
5. the previous periodic monthly 05 (five), the Department of labor, invalids and Social Affairs submitted the list of foreigners who have been granted, renewed and reissued work permits for entry and exit administration in the form of 12 local attached to this circular.
Article 14. The liability of the employer, the partner Vietnam and foreign non-governmental organizations 1. The correct implementation of the provisions of the labour law of Vietnam and the other legal provisions concerned of Vietnam.
2. The alien through the Organization to introduce the work done with the job referral center in the Department of labor, invalids and Social Affairs contract local labor recruitment model number 13 attached to this circular.
3. Do the recommended procedure for licensing workers, labor and permit renewal again permits for foreigners working in Vietnam.
4. Fully implementing the labor contract has entrusted with foreigners working in Vietnam in accordance with the provisions of the law; send a copy of the labor contract has entrusted to the Agency has granted work permits for foreigners.
5. Manage profile sign labor of foreigners working in Vietnam, and must often supplement the papers related to the alien in the process working in Vietnam.
6. Management of foreigners working in the enterprise, organization.
7. within 15 (fifteen) days for the case work permit expired or disabled according to the provisions of article 12 of Decree No. 34/2008/ND-CP has been modified and supplemented the employers or the Vietnam partners, representatives of non-governmental organizations abroad must send a report in writing to the Department of labor, invalids and Social Affairs granted permits on the cases work permit expired or disabled and submit work permit expired or invalid, the case did not submit a work permit must clearly state the reason.
8. The report cites peer list for foreigners working in Vietnam not granted work permits according to the provisions in clause 1 article 9 of Decree No. 34/2008/ND-CP has been modified and supplemented by model number 11 attached to this circular and submit the papers of foreigners as defined in paragraph 6 article 9 of Decree No. 34/ 2008/ND-CP has been modified and supplemented on the Department of labor, invalids and Social Affairs Headquarters or where foreigners often work.
9. license fee, renew work permits and work permits reissued under the provisions of the law on fees and charges.
10. Periodically every year before 15 December, the employers must sign the demand and use of foreigners next year as specified in paragraph 7 article 19 of Decree No. 34/2008/ND-CP has been modified and supplemented in the number, qualification, experience, salary working time (start and end) for each job position with the Department of labor, invalids and Social Affairs local form 14 attached to this circular. Case change needs foreigners who use the employer must register the additional recruitment needs and use the alien before at least 30 (thirty) days from the date the employer notice of the need to recruit foreigners with the Department of labor, invalids and Social Affairs by local 15 in form attached to this circular.
Article 15. The liability of aliens 1. The full study of the provisions of the law of Vietnam by the employers or the Vietnam partners, representatives of non-governmental organizations abroad provide, at the same time to prepare the necessary paperwork and perform in accordance with the provisions of the law on employment and management of foreign people; the full implementation of the provisions of the law of Vietnam.
2. registration filing labor, preparing the necessary papers in the record to suggest the labor permit, records suggest the extension of work permits and recommended records re-issued work permit according to regulations. After being granted work permit, foreigners and employers must conduct labor contracts in writing according to the regulations of the Vietnam labour law.
Article 16. Periodic report 1. The owner is responsible for performing periodic reporting mode prior to the date of the first quarterly month 5 of the Department of labor, invalids and Social Affairs on the recruitment situation and management of foreigners working for the foreign contractors of the previous quarter according to the provisions in paragraph 6 Article 6a of the Decree No. 34/2008/ND-CP has been modified supplements made under 16 attached to this circular.
2. The Department of labor, invalids and Social Affairs is responsible for implementation of the periodic report mode before June 15, annually on the Ministry of labour, invalids and Social Affairs (Employment Agency) on registration and enrolment demand use foreigners of the employers, the partner Vietnam non-governmental organizations, foreign countries in the form of 17 attached to this circular. Perform periodic reporting six months earlier, on July 15, and annually, prior to January 15, 01 of the Ministry of labor, invalids and Social Affairs (Employment Agency) about the situation of foreigners who work in enterprises, institutions and foreigners working for foreign contractors in the management under model number 18 attached to this circular.
3. The employers, the partner Vietnam and foreign non-governmental organizations have a responsibility to perform periodic reporting six months earlier, on July 5 and annually, prior to December 5, 7 of the Department of labor, invalids and Social Affairs where local businesses, organizations headquartered or operating regularly on the situation using the alien form number 19 attached to this circular. At the same time make unscheduled reports required by State regulators about the labor situation using foreigners.

Article 17. Effect 1. This circular is effective as from January 18, 2011.
2. This circular replaces circular No. 08/2008/TT-BLDTBXH DATED June 10, 2008 by the Ministry of labor, invalids and Social Affairs guidelines for implementing a number of articles of Decree No. 34/2008/ND-CP dated 25 March 2008 of the Government regulations on recruitment and management of foreigners working in Vietnam.
In the process if there are obstacles, the proposal reflects on the Ministry of labour, invalids and Social Affairs to guide timely addition./.