Tiếng Việt
中文 (中国)
Foreign workers who want to work in Vietnam need to meet the mandatory legal conditions of the Vietnamese government regarding documents and procedures. In addition to a visa, a work permit is one of the most important conditions for workers to be able to work legally in Vietnam. So, when applying for a work permit, what difficulties or problems will foreign workers face? With the desire to be able to help readers understand this issue more clearly and deeply, in this article, ASL Law will detail problems related to work permits for foreign workers working in Vietnam.
A work permit is a document that allows a foreign worker to legally work in Vietnam. The work permit will be issued by the Department of Labor, War Invalids, and Social Affairs of Vietnam and will contain information about employees such as full name, passport number, date of birth, nationality, name, and address of the organization where the employee work, and their position in that company.
Not only that, a work permit is a necessary permit for foreigners when carrying out procedures related to exit and entry into Vietnam. Without a work permit or a written confirmation that they are not eligible for a work permit under the provisions of the Vietnam Labor Code, foreign workers working in Vietnam will be expelled from the territory of Vietnam and enterprises employing foreign workers without work permits to work illegally will also be sanctioned according to the law.
Scope of foreign workers working in Vietnam need to apply for a work permit
However, what is meant by ‘foreign workers working in Vietnam’? Are foreign nationals coming to Vietnam to travel and perform part–time jobs without an official labor contract or a labor contract of less than 1 month eligible for such titles?
Because during the peak two years of the Covid–19 pandemic in Vietnam, many cases of foreign citizens traveling in Vietnam were unable to return home because of the quarantine and blockade orders, leading to them becoming incapable financially to pay for daily living, therefore, they had to perform different jobs on foreign soils with the purpose of obtaining money to spend.
A special point here is that in most of these cases, the foreigners do not intend to work in Vietnam and therefore do not have enough knowledge about the legal requirements to be able to work legally, especially in terms of work permits.
According to Decree 152/2020/ND-CP stipulating foreign workers working in Vietnam, employees being foreign nationals come to work in Vietnam in the following forms:
– Those who perform labor contracts.
– People who move within the enterprise.
– People who perform various kinds of contracts or agreements on economic, commercial, financial, banking, insurance, scientific and technical, cultural, sports, educational, vocational and medical education in the enterprise.
– Contracted service providers.
– Service sellers.
– People working for foreign non–governmental organizations and international organizations in Vietnam are allowed to operate in accordance with Vietnamese law.
– Volunteers.
– Person responsible for establishing a commercial presence.
– Managers, executives, experts, and technical workers of enterprises.
– Participants in the implementation of bidding packages and projects in Vietnam.
– Relatives of members of foreign representative missions in Vietnam are allowed to work in Vietnam according to the provisions of international treaties to which the Socialist Republic of Vietnam is a signatory.
In addition, Article 154 of the Labor Code 2019 and Article 7 of Decree 152/2020/ND-CP also specify cases that are not subject to work permits:
– Being the head of a representative office or project or taking main responsibility for the operation of international organizations, and foreign non–governmental organizations in Vietnam.
– Enter Vietnam with a term of fewer than 3 months to make a service offering.
– Entering Vietnam for a period of fewer than 3 months to handle problems, technical situations, and complicated technologies that affect or threaten to affect production and business that Vietnamese experts and foreign experts currently in Vietnam cannot handle it.
– Being a foreign lawyer who has been granted a license to practice law in Vietnam in accordance with the Law on Lawyers.
– Cases according to the provisions of international treaties to which the Socialist Republic of Vietnam is a contracting party.
– Foreigners married to Vietnamese and living in Vietnamese territory.
– Being the owner or capital contributor of a limited liability company with a capital contribution value of 3 billion VND or more.
– Being the Chairman of the Board of Directors or a member of the Board of Directors of a joint–stock company with a capital contribution value of 3 billion VND or more.
– Moving within enterprises within 11 service industries in Vietnam’s service commitment schedule with the World Trade Organization, including business, information, construction, distribution, education, environment, finance, health, tourism, culture, entertainment and transportation.
– Entering Vietnam to provide professional and technical consulting services or perform other tasks for research, development, appraisal, monitoring, evaluation, program management, and implementation, projects using official development assistance (ODA) according to regulations or agreements in international treaties on ODA signed between competent authorities of Vietnam and foreign countries.
– Licensed by the Ministry of Foreign Affairs to operate information and press in Vietnam in accordance with the law.
– Being sent to Vietnam by a competent foreign agency or organization to teach and conduct research at an international school under the management of a foreign diplomatic mission or the United Nations; establishments and organizations established under agreements that Vietnam has signed or joined.
– Volunteers specified in Clause 2, Article 3 of this Decree.
– Entering Vietnam to work as a manager, executive director, the expert or technical worker with a working period of fewer than 30 days and no more than 3 times in a year.
– Enter Vietnam to implement international agreements signed by central and provincial agencies and organizations in accordance with the law.
– Students who are studying at overseas schools and training institutions that have an internship agreement in agencies, organizations, and enterprises in Vietnam; trainees or interns on Vietnamese ships.
– Relatives of members of foreign representative missions in Vietnam specified at Point l, Clause 1, Article 2 of this Decree.
– Have an official passport to work for state agencies, political organizations, socio-political organizations.
– Person responsible for establishing a commercial presence.
– Being certified by the Ministry of Education and Training for foreign workers to enter Vietnam for teaching and research.
Thus, foreign workers who work in Vietnam in the forms mentioned above and are not eligible for a work permit need to apply for a work permit.
In addition, for cases of part-time work without an employment contract, the employer is legally not allowed to hire such foreign nationals. However, because there is no contract, which means that there is no legal basis to protect the rights of workers when there is a conflict, the foreign worker will be the disadvantaged party.
Problems with work permits of foreigners working in Vietnam
When carrying out procedures for granting, re–granting and extending work permits, foreign workers will have to go through many difficult and complicated stages. Typically as:
Must prepare properly, all kinds of documents in different dossiers
Depending on the purpose and position that the employer wants the foreign worker in Vietnam to undertake, the types of papers and documents that need to be prepared will also be different.
According to Article 9 of Decree No. 152/2020/ND-CP of the Government, the application file for a work permit for foreigners includes 08 different types of documents such as a written request for a work permit; health certificate/health examination certificate issued by a competent medical agency or organization; judicial record card/document certifying that the foreign worker is not serving a penalty or has not had his criminal record cleared or is being examined for penal liability issued by a foreign/Vietnamese person; documents and papers proving that they are managers, executives, experts, technical workers; written approval of the need to employ foreign workers; color photos; certified copy of a valid passport; Other documents;…
After preparing enough documents, the employer reports to the Ministry of Labor, Invalids and Social Affairs/provincial People’s Committee where the foreign worker is expected to work.
Consular legalization of documents is complicated and time-consuming
Clause 10, Article 9 of Decree 152/2020/ND-CP stipulates the consular legalization of the different types of documents mentioned above.
According to the provisions of Clause 2, Article 2 of Decree 111/2011/ND-CP, “Consular legalization” is understood as the certification of seals, signatures and titles by a competent Vietnamese authority on foreign documents and papers. Accordingly, the necessary documents to submit to the authorities such as applying for and renewing work permits will be recognized and used in Vietnam.
Indeed, many foreign workers will also feel quite confused about the concept of consular legalization, leading to their ignorance of regulations on carrying out necessary procedures, which take a long time to complete.
The validity period of the work permit is not long
According to the previous regulations, work permits for foreigners are valid for a maximum of 3 years. However, according to Article 155 of the Labor Code 2019, from 2021 onwards, the maximum validity period of work permits for foreigners working in Vietnam is 2 years.
In case the work permit expires, when it is extended, it can only be extended once with a maximum term of 2 years.
Accordingly, a work permit that has already been extended will be valid for a maximum of 4 years in Vietnam. If the enterprise continues to employ workers beyond this time, it must apply for a new work permit.
Such short and limited validity of a work permit has partly created many inadequacies for the foreign worker as well as the employer, especially in the case that both parties do not have the full knowledge or not paying attention to the duration of the work permit.
Moreover, the most inconvenient point that can be easily seen is that between the two parties, it is not possible to enter into an indefinite labor contract, but can only enter into a labor contract of no more than 2 years because of compliance with the validity period of the work permit.
Special cases of work permits
Before officially carrying out the procedures for applying for, re-granting, and extending work permits, foreign workers should note that they will not need a work permit if they fall into one of the cases exempted from the need to have a work permit in Vietnam.
Special cases that do not require a work permit in Vietnam have been detailed in Article 154 of the Labor Code and Article 7 of Decree 152/2020/ND-CP. However, in order to be exempt from work permits, foreign workers still need to carry out certification procedures with the Ministry of Labor, War Invalids and Social Affairs, or the Department of Labor, War Invalids and Social Affairs.
Within 5 days from the date of submission of complete documents, the employer will receive a confirmation of exemption from work permits for foreign workers if it is certified by the Ministry of Labor – Invalids and Social Affairs or the Department of Labor – Invalids and Social Affairs that the dossier is valid.
Q&A
Client: “If while living and working in Vietnam, I get an illness/accident that makes me no longer eligible for a health certificate (or for any other reason, I cannot continue to operate and work in Vietnam), then can I postpone or reserve my work permit until I am cured of the disease/accident?”
Because the health certificate is one of the documents as a basis for the issuance of a work permit, in the case of ineligibility for a health certificate, it is not possible to apply for a work permit. Therefore, you cannot postpone or reserve your work permit until you recover from your illness. So, by the time you are eligible for a health certificate, please go through the procedure for a work permit again. In case of necessity, employees can choose to apply for a Business visa for a short period of time from 1 to 3 months to work and live legally in Vietnam and when they have ensured their health, they can carry out procedures for applying for a work permit.
Client: “When I was granted a work permit, I was in the position of sales manager at that time. However, after one year, I was ‘transferred’ – promoted to the position of deputy director, do I need to go through the procedure to correct and re-issue the work permit when the information is no longer correct? If not corrected, according to Vietnamese law, what penalties can I and the company incur?
According to the provisions of Clause 3, Article 156 of the Labor Code 2019, there are provisions for cases in which a work permit expires.
“3. The content of the labor contract does not match the content of the issued work permit.”
Obviously, when there is a change of job position, the labor contract will also have to change accordingly as it is now no longer true to the content of the issued work permit. Therefore, in case there is a change of job position, the issued work permit will be invalidated.
Pursuant to Point b, Clause 9, Article 9 of Decree 152/2020/ND-CP:
“For foreign workers who have been issued with a valid and currently effective work permit and change their job position or job title or the form of work stated in the work permit as prescribed by law, but If the employer does not change, the application file for a new work permit includes the papers specified in Clauses 1, 4, 5, 6, 7 and 8 of this Article and the work permit or a certified copy of the issued work permit.”
Accordingly, when changing the job position, the employee and the foreign employer are obliged to carry out the procedures for a new work permit with the above-mentioned documents.
In case, the parties do not carry out the above procedures but continue to perform the new job position with the old work permit, the
“A fine of between VND 5,000,000 and 10,000,000 shall be imposed on each employee for violations, but not exceeding VND 75,000,000 for employers who commit acts of using foreign workers, not consistent with the content stated on the work permit or the written certification that the employees do not need a work permit unless otherwise provided for by law.”
Accordingly, the employer will have to pay a fine of 5–10 million VND for each employee who violates it.
Related posts:
- Preservation of leave for Vietnamese employees
- Regulations on the recruitment and employment of minor employees in Vietnam
- Regulations on payment of wages for overtime employees working at night in Vietnam
- Cases not entitled to the occupational accident regime in Vietnam in 2022
- Authorization to receive wages on behalf of employees in Vietnam in 2022
ASL LAW is the top–tier Vietnam law firm for Employment and Labor Law. If you need any advice, please contact us for further information or collaboration.
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