Murky Waters: Vietnam’s post-pandemic immigration environment

No country has exemplified the ups and downs of the pandemic period (and the “post-pandemic” period, for that matter) quite like Vietnam.

On the one hand, Vietnam is seen as a country of great potential – with a young and vibrant workforce, high literacy rates and heavy investment in infrastructure – poised to take advantage of geopolitical conditions in the region. On the other hand, what could be an encouraging opportunity has been counterbalanced by the country’s swerve towards protectionism and a highly complex (and sometimes unforgiving) work permit system.

These countervailing forces have now created a much more complicated system than might appear on the surface – and one that companies seeking to enter this market would do well to navigate carefully.

How did we get here?

While we have written extensively about the roller coaster ride that has been the Vietnam immigration landscape throughout the last few years, those various currents at play have now come to a head. 

First, during the COVID-19 pandemic, a much greater amount of discretion was granted to the local authorities in each province, which has not been clawed back since the reopening of the country. 

Second, the political environment has also become somewhat more unstable and unpredictable, with several high-profile scandals and subsequent resignations. The impact of these developments cannot be taken lightly, as they have resulted in both real procedural changes and new requirements as well as an unease amongst adjudicating officers resulting in higher scrutiny. While the former may be the most visible consequence, it is the latter that is likely to have a more lasting impact (given the pervasiveness of this new mindset). 

Finally, it should be noted that the Vietnamese work permit process itself has always had its unique features. While the recent impact of Decree 152 cannot be understated, even pre-COVID, the work permit process in Vietnam was a uniquely local one, with the various provincial authorities having jurisdiction over most applications (and with resultant inconsistency in policy amongst the various localities). 

For instance, while the overall framework may be similar across the country, the actual process and procedures to obtain a work permit may vary depending on where the application is filed (i.e., Hanoi versus Ho Chi Minh City). Furthermore, the process is a largely bifurcated one, with the local Departments of Labour, Invalids & Social Affairs (DOLISAs) having jurisdiction over the work permit application (as well as the prerequisite Foreign Worker Demand Report/Job Position Approval or JPA application) and the local Immigration Departments having jurisdiction over visa (and the longer-stay Temporary Resident Card) matters. 

In a nutshell, the overall Vietnamese work permit process had already been a difficult one to maneuver (even well before the pandemic and before the more recent rise in protectionist policies). Furthermore, of the various immigration regimes in Southeast Asia, the Vietnamese process has had some of the most onerous documentary (and document legalization) requirements (given the fact that Vietnam is not part of the Hague Convention), resulting in sometimes very lengthy lead times.

Major impacts

These factors have now come to a head in the current environment. Where once the process was at least more linear (if not efficient), the current regime is one that is marked by an increase in rejections, lengthy delays and inconsistent adjudication standards.

For example, no issue exemplifies these challenges more than the adjudication of the JPA application itself. As mentioned, the JPA application is a prerequisite step to apply for a work permit for a foreign national in Vietnam. This application is essentially the sponsoring company’s request for the DOLISA to approve a specific job position or role for the foreign national to take up. Where once this application and its approval were quite standard (and in some ways more of a formality), that is no longer the case.  In fact, this is the stage where we are now seeing the most delays and – what was once rare – more frequent rejections (and sometimes multiple rejections for the same application), resulting in the need to resubmit (adding additional lead time). 

To be fair, the DOLISAs have been quite open about the cursory treatment that they believe has been given by companies in the past on their JPA applications, particularly around why the position needed to be filled by a foreign national (rather than a Vietnamese local). They do expect now that the company will more fully explain why the specific position requires a foreign national employee, including very comprehensive details on the required qualifications, experience and job specifications of the position. 

In other words, they will no longer accept (or tolerate) boilerplate templated applications (which they may have accepted in the past). Each JPA application now must be intricately tailored to the foreign national candidate that the company wishes to bring on board.

Having said that, the DOLISAs are also rejecting applications for a multitude of other reasons (some substantive, but some that also appear to be technicalities), including the following:

• If the requested job title does not, in their view, match up with the job description.
• If they believe that the specified job title should require professional training (rather than simply on-the-job training or work experience).
• If the company does not fully explain why specific Vietnamese candidates were not considered.
• For technical workers, if they hold no degree certificate.
• Where supporting documents are not properly legalized.
• Where Vietnamese translations are deemed to be inaccurate.
• Where the documentation does not conform exactly to the specifications as required under Vietnamese regulations.

From the practical point of view, if a JPA application is rejected, it can be resubmitted after taking into consideration and resolving the reasons for rejection. That said, this would of course then require the processing time to start anew, resulting in potentially month-long delays to the overall work permit process. Again, as the JPA is the first step of the overall work permit process, any delays and rejections at this stage only results in further potential issues downstream.

Furthermore, not only are we starting to see an increase in the rejection rate of JPA applications but now also for Work Permit applications as well (and even for those where the JPA has already been approved).  This was quite unheard of before but is now becoming more and more common.

The view from within

While the current environment is difficult enough for those looking to newly enter Vietnam, it has been even worse for those who are already in Vietnam (and some for years or even decades), as the new rules have been applied indiscriminately. 

This was already the case when Decree 152 was first implemented, but this has now been amplified in the post-COVID environment. More and more often now, the DOLISAs have even been rejecting applications for renewal applications and/or the documentary requirements have been made so onerous that it is virtually impossible for an application to be filed on time. This may then result in the foreign national (and perhaps his/her accompanying family) having to leave the country for a period of time while his/her work permit process is sorted (which is of course not ideal and is disruptive for both the foreigner and the employer).

Moreover, the DOLISAs have strictly interpreted Decree 152 to mean that only work experience gained overseas is relevant to a work permit application in Vietnam. This means that any Work Experience Certificates that are submitted as part of the application (even for renewal applications) must be from previous overseas employers (even if the individual has worked in Vietnam for many years already and where his/her most recent work experience has been in the country). This of course becomes a major burden for those foreign nationals who are now required to contact previous employers that they may not have been in contact with for many years (or which may no longer be in business).

Looking ahead

Despite the challenges above, there are some hopeful signs (albeit quite limited at this stage). 

First, it does seem that the DOLISAs (and MOLISA) are willing to engage with the business community and industry groups to hear their feedback. While that may seem small, it is of course an important first step, according to clients and advocacy groups. From those stakeholders’ perspectives, it is promising that the relevant government agencies are at least open to discussions so that perhaps meaningful changes can be suggested.

That said, when Decree 152 first emerged, MOLISA also undertook to open dialogues with the business community at that time as well, although very few positive changes were made. Due to the limitations on entry during the pandemic, however, it could be argued that the most onerous aspects of Decree 152 were still constrained simply by the fact that few foreign national assignees were permitted to enter the country (and the authorities could chalk that up to their justifiable COVID-prevention policies). Now that the borders have reopened and the last of the pandemic-era policies removed, the authorities now have to grapple with a restrictive framework that perhaps is not equipped to handle such a wide variety of case-specific circumstances. 

Indeed, by way of further example, the European Chamber of Commerce in Vietnam (EuroCham) recently held a meeting with the DOLISA in HCMC specifically on the work permit challenges. In its response to the meeting, it is interesting to note that the DOLISA focused its solutions on simply the reduction of the stated processing times, but what was missing in those undertakings was any change to the adjudication standards mentioned above. Time will tell whether this specific exchange is truly a sign of decreased restrictionism. 

What we can learn from these recent advocacy efforts, however, is that perhaps the government will now be more open to further dialogues before enacting any new sweeping regulations in the future.

Need to know more?

For further information related to the ongoing evolution of Vietnam’s immigration system, please contact Partner Kenneth Lau at [email protected].

This blog was published on 14 March 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our dedicated COVID-19 site, subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.