The confusion generated by a guideline given by the HCMC Department of Labor, War Invalids and Social Affairs on work permits for working expatriates has been taken notice of by relevant authorities. Revisions are expected to come out soon, experts have said.

In mid-May, the HCMC Department of Labor, War Invalids and Social Affairs (the Department) sent to entities employing foreign workers a notice coded 6107 on new regulations on work permits. The notice states that the issuance of expired permits granted in line with Decree 34 (2008) and Decree 46 (2011) would have to conform to new regulations stipulated in Item 3 of Decree 102 (2013).

Issuance Item 3 of Decree 102 rules that to complete files for work permit issuance (Article 10), aside from certificates of health and professionalism and the like, applicants and their employers have to submit to the governing agency (the Department in this case) applicants’ criminal record. Notably, the new regulation stipulates that the criminal record must have certification that the applicant is not convicted or accountable for criminal responsibility in accordance with Vietnamese law (the provincial Justice Department and the National Center for Criminal Record are responsible for certification for foreigners who have resided and are residing in Vietnam), and foreign law (foreign competent authorities are responsible for certification of the time when foreign applicants live in a foreign country). The certification is valid for six months as from the date of the file submission.

However, an official with the RMIT Vietnam, where more than 300 expatriates are working, argued that such a stipulation is unreasonable to those with expired permits who want to remain here to work. These foreigners have not been in their countries since they came to Vietnam, they are therefore denied criminal record by agencies in their countries and are requested to be back if they want such a paper. Moreover, prior to their arrivals in Vietnam, the expatriates in question had already submitted “clean criminal record. And thus what is another submission for? “The submission of criminal record (granted by competent Vietnamese authorities) seems to be reasonable at first,” said Le Thanh Kinh, head of Le Nguyen Law Office in HCMC. “In fact, if they are convicted while in Vietnam, such convictions, if any, have been sent to the governing body in charge (the Department).”

Renewal

In reality, the Department’s notice requesting employers of foreign workers to conform to Item 3 of Decree 102 in case of expired work permits is not in line with the spirit and content of Decree 102, said Kinh. Item 3 of Decree 102 stipulates “Issuance of Work Permits,” while those who have already obtained a work permit in Vietnam should be governed by Item 3 of Decree 102 concerning “Renewal of Work Permits.”

Item 4 of the decree rules that for their work permits to be renewed upon expiry applicants and their employers have to submit the following papers: the permit still valid at least five days and 15 days at most from the expiry date; a health certificate; the document issued by the provincial authorities on acceptance of foreign workers, among several other papers.

Nguyen Van Khai, vice chairman of the HCMC Labor Federation, contended that the Department has mistaken the procedures for [new] permit issuance with those for renewal. In fact, quite a few departments in other provinces—such as Binh Duong and Dong Nai—are still renewing foreigners’ work permits upon expiry.

Still unclear

A leader at the Ministry of Labor, War Invalids and Social Affairs (the Ministry) said the ministry will soon issue a clearer guideline on Decree 102. Currently, Circular 03 (2014) by the Ministry guiding the implementation of Decree 102 is creating pressure on all stakeholders, including working expatriates in Vietnam, employers as well as governing bodies. According to Article 5.2.a of this circular, when applying for a work permit in Vietnam, a foreigner who once resided in Vietnam has to obtain a criminal record notice to be issued by the National Center for Criminal Record (the Center, under the Justice Ministry). If the applicants are residing in Vietnam, they have to obtain a criminal record notice issued by the provincial justice department.

Dang Thanh Son, the Center’s director, said this stipulation has resulted in a bottleneck. Since February, the Center has received a host of requests on the guidance of criminal record applications, from domestic and foreign applicants. Some of them resided in Vietnam for only two or three days or their residences were not continuous. Son contended that although the request of criminal record for foreigners’ residence in Vietnam to be granted with a work permit is justifiable, such a request should come with a time limit. “That no limit has been set for the time in Vietnam in which criminal record is necessary has confused expatriates seeking work permits in Vietnam,” Son said.

To reduce all these nuisances, Son maintained that the Ministry should revise Circular 03. Only those who reside in Vietnam for at least six months are required to have criminal record issued by competent Vietnamese authorities.

Source: The Saigon times