#10 Foreign employee: Legal issues to consider for foreign employee in Vietnam (Part 1)

Greetings, listeners! Welcome back to The Lawyers Talk channel of BLawyers Vietnam. My name is Nguyen Thi Thuy Linh. In this episode of the podcast, we will talk about the provisions of the law relating to foreign employees who are working in Vietnam.

Lawyer Tran Ngoc Thuyet, Senior Partner of BLawyers Vietnam, will discuss this topic with me. Welcome, Mr. Thuyet to the podcast today.

Guest

Hello, everyone. Hello, Thuy Linh. I am Tran Ngoc Thuyet, Senior Partner of BLawyers Vietnam.

Host

Hi, Mr. Thuyet and dear listeners. We all know that Vietnam is strongly integrating with the global economy, and more and more people from different countries are coming to work, do business, and live in Vietnam. According to labor statistics reports, the number of foreign workers has been on the rise in the Vietnamese market in recent years.

So, please let us know what the conditions are for foreign workers to be allowed to work in Vietnam.

Guest

Under the laws of Vietnam, a foreign employee working in Vietnam is a person who is not a Vietnamese citizen and must meet the following conditions:

First, the foreign employee shall be at least 18 years old and have full civil capacity;

Second, the foreign employee shall have professional qualifications, skills, experience, and good health as prescribed by the Minister of Health;

Third, the foreign employee shall not be in the process of serving a sentence or has not been expunged from the criminal record or is currently being prosecuted for criminal responsibility under the laws of foreign countries or Vietnamese laws;

Fourth, the foreign employee shall be granted a work permit by competent authorities of Vietnam, except in cases where the work permits are exempted under the law.

Therefore, we can see that in order for individuals who are foreign employees to work in Vietnam, they must meet these conditions in which foreign workers need to pay special attention to when applying for labor permits.

Host

These conditions state that the foreign employee working in Vietnam shall be granted a work permit, except in cases exempted from a work permit. When can foreign workers be exempt from a work permit?

Guest

To encourage, attract, and create favorable conditions for high-quality foreign employees from other countries to work in Vietnam in the fields of investment and education, in addition to cases related to diplomatic issues between countries, Vietnamese labor law currently stipulates that about 20 groups of foreign employees are exempt from work permits as follows:

  • First, they are owners or contributing members of a limited liability company that has a contribution value of 03 million dong or more;
  • Second, they are a President of a Board of Management or a member of a Board of Management of a joint stock company that has a contribution value of 03 million dong or more;
  • Third, they are Head of a Representative Office or a Project, or they are responsible for the operation of international organizations or foreign non-governmental organizations in Vietnam;
  • Fourth, they are working within internal enterprises belonging to 11 service lines included in the Schedule of Specific Commitments in Service between Vietnam and the World Trade Organization, including business, communication, distribution, contribution, education, environment, finance, medical, travel, entertainment, and transportation.
  • Fifth, they enter Vietnam for less than 03 months to offer their service;
  • Sixth, they enter Vietnam for less than 03 months to resolve problems, technical circumstances, or complex technologies that could affect or pose risks to production or business in which Vietnamese experts and foreign experts residing in Vietnam cannot resolve;
  • Seventh, they are foreign lawyers granted a License to Practice Law in Vietnam under the Law on Lawyers;
  • Eighth, they are foreigners who are married to Vietnamese citizens and live in Vietnam’s territory;
  • Ninth, under circumstances under the provision of international treaties In which the Socialist Republic of Vietnam is a party;
  • Tenth, they are entering Vietnam to provide a consultancy service at the professional or technical level to serve research, construction, expertise, assessment observation, management and processing of programs, projects that use capital from Official Development Assistance (“ODA”) under regulations, or an agreement specified in international treaties about ODA signed between competent authorities of Vietnam and other countries;
  • Eleventh, they have been granted a license for communication activity and journalism activity in Vietnam by the Ministry of Foreign Affairs under the law;
  • Twelfth, they are appointed to enter Vietnam to teach or work as a manager or director in an education establishment cited in the establishment proposal of the foreign diplomatic representative authority or an intergovernmental organization in Vietnam by a foreign competent authority; or in establishments and organizations established under international treaties that Vietnam has signed and participated in as a party;
  • Thirteenth, they are volunteers who are foreign employees working in Vietnam under the formality of volunteer and are not receiving a salary that follows an internal treaty to which the Socialist Republic of Vietnam is a party and has affirmation from a foreign diplomatic representative authority or international organization in Vietnam;
  • Fourteenth, they are entering Vietnam to work as a manager, director, or expert of technical labor and have a working term of less than 30 days and not over 03 times per year;
  • Fifteenth, they are entering Vietnam to carry out an international agreement that authorities or organizations at the central level or provincial level have signed under the law;
  • Sixteenth, they are students studying at school or training establishments in foreign countries having internship agreements with authorities, organizations or enterprises in Vietnam; or are interns or apprentices on Vietnamese ships;
  • Seventeenth, they are relatives of a member of foreign representative authorities in Vietnam who are allowed to work in Vietnam under the regulation in the international treaty to which the Socialist Republic of Vietnam is a party;
  • Eighteenth, they have official passports to work for competent authorities, political organizations, or political-social organizations;
  • Nineteenth, they are responsible for the establishment of a commercial presence; and

Finally, they are foreign employees affirmed by the Ministry of Education and Training to enter Vietnam to teach, research, or work as a manager, director, president, or vice-president of an education establishment based on an establishment proposal of a foreign diplomatic representative authority or an intergovernmental organization in Vietnam.

Host

Yes, there are many foreign employees currently working in Vietnam in the position of experts. So, how does Vietnamese law regulate the professional standards for the position of expert?

Guest

According to the prevailing law, experts who are foreign employees fall into one of three categories as follows:

Circumstance 1: They are a graduate from a university or more or equivalent and have at least 03 years of working experience that is appropriate to the position where the foreign employees expect to work in Vietnam; or

Circumstance 2: They have at least 05 years of working experience and have a license to practice that is appropriate to the position where the foreign employees expect to work in Vietnam; or

Circumstance 3: Special circumstances approved by the Prime Minister under a proposal from the Ministry of Labour – Invalids and Social Affairs.

Host

Could you give our listeners a brief overview about the procedures, formalities, and authority for issuing work permits to foreign employees?

Guest

Regarding the authority to issue work permits to foreign employees, the Government has agreed to assign the Ministry of Labor – Invalids and Social Affairs or the Department of Labor – Invalids and Social Affairs (hereinafter collectively referred to as the “Competent Authority“) to resolve work permit approval depending on each specific case.

Regarding the procedure for work permit obtainment for foreign employees, I would like to summarize it as follows:

Step 1: Before at least 15 days from the date when the foreign employees are expected to begin to work, employers shall submit a dossier of determination on the demand for employment of foreign employees to the Competent Authority.

Please note that employers only take this step if their foreign employees do not fall into the circumstances that are exempted from determining the demand for employment of foreign employees.

Step 2: Within 10 working days from the date of receiving the explanation on the demand for employment of foreign employees, the Competent Authority will issue written approval for the use of a foreign employee for each position.

Step 3: Before at least 15 working days from the date when the foreign employees expects to begin working in Vietnam, employers shall submit a dossier on obtaining a work permit to the Competent Authority where their employees expect to work.

Step 4: Within 05 working days from the date of receiving the dossier on obtaining a work permit, the Competent Authority where the employee expects to work issues a work permit for the foreign employee. If the Competent Authority does not issue a work permit, the Competent Authority shall issue an official letter of explanation and describe the reason.

Step 5: The employers shall send the original or certified-as-true copy of the labor contract signed between the employer and the foreign employee to the Competent Authority which issued the work permit if the foreign employee works in Vietnam under the formality of a labor contract.

Host

So, for cases exempt from a work permit, do employers need to complete any procedures with the competent authorities in Vietnam?

Guest

As I mentioned in the previous section, Vietnamese law allows for certain special cases to be exempt from a work permit. However, being exempt from a work permit does not mean that no confirmation procedures are required by Competent Authorities.

Therefore, everyone should be aware of the procedures, confirmation procedures, and reporting procedures for each specific case of foreign employees as follows:

First of all, foreign employees do not need to apply for confirmation of exemption from a work permit, but only need to report to Competent Authorities relevant information about foreign employees in the following 06 cases:

  • First, they are entering Vietnam for less than 3 months to offer services;
  • Second, a foreign lawyer has been granted a license to practice law in Vietnam according to the Law on Lawyers;
  • Third, they are an owner or contributing member of a limited liability company with a capital contribution value of 3 billion dong or more;
  • Fourth, they are President of the Board of Management or a member of the Board of Management of a joint stock company with capital contribution value of 3 billion dong or more;
  • Fifth, they are entering Vietnam to work as a manager, director, expert, or technical laborer with a working period of less than 30 days and no more than 03 times per year; and
  • Sixth, they are relatives of members of foreign representative authorities in Vietnam.

Regarding the remaining cases, it is compulsory to carry out the procedure to confirm that foreign employees do not fall into an exemption from work permits.

Host

Can you briefly outline the components of the dossier that foreign employees and employers need to prepare to apply for a work permit?

Guest

Here I would like to briefly introduce the components of the dossier that foreign employees and employers need to prepare. However, please note that depending on the position or the job title, the supporting documents for the position in the work permit application dossier will be different.

The foreign employee and the employer must prepare 08 documents as follows:

  1. Application for obtaining a work permit.
  2. Health check certificate or report of a medical examination issued by a competent authority, a competent medical organization abroad or in Vietnam that is valid within 12 months from the date of confirmation until the date of submission;
  3. Criminal record issued by a foreign authority or Vietnamese authority which is valid within no more than 06 months from the date of issuance until the date of submission;
  4. Documents or papers proving that they are a manager, director, expert, or technical laborer. For example, for management positions, directors need to prepare an Enterprise Registration Certificate or appointment decision; for expert positions, a diploma and written confirmation from a foreign authority about the expert’s number of years of experience.
  5. 02 color photos (size 4cm x 6cm, white background, frontal face, bare-headed, and no colorful glasses), taken no more than 6 months from the date of submission;
  6. The acceptance of demand of employing the foreign employee (except in cases where there is no need to determine the demand for using the foreign employee);
  7. Certified-as-true copy of the foreign employee’s passport with confirmation from the employer;
  8. Other relevant documents in specific cases.

Therefore, foreign employees and employers should determine the job position correctly to prepare the corresponding application dossier.

Host

What should foreign employees and employers keep in mind about documents issued abroad, Mr. Thuyet?

Guest

For documents issued by foreign authorities, it is important to note that they must be legalized by a foreign authority, translated into Vietnamese, and notarized or authenticated, unless they are exempted from legalization by international treaties to which the Socialist Republic of Vietnam and the relevant foreign country are both parties, by the principle of reciprocity, or by law.

Host

Some foreign employees and even employers are still confused about the difference between the procedures for renewing and issuing a work permit.

Can you analyze the differences between the two procedures so that our listeners can correctly determine the procedure to be carried out in each specific case?

Guest

Procedures for extending and reissuing work permits are two procedures with completely different natures and purposes.

The procedure for renewing a work permit applies to cases where the work permit is nearing its expiration date and the renewal is carried out before the work permit expires.

  1. To be eligible for a work permit renewal, foreign employees must meet the following conditions:The issued work permit is valid for at least 05 days but not more than 45 days;
  2. The employer has been approved by the competent authority for the demand on employing foreign employees; and
  3. Have documents proving that the foreign employee continues to work for the employer according to the issued work permit.

The re-issuance of the work permit is applied in the following cases:

  1. The work permit is still valid but lost;
  2. The work permit is still valid but damaged; or
  3. One of the following contents is changed: full name, nationality, passport number, work location, or business name without changing the business code recorded in the valid work permit.
Host

So, what is the maximum validity period of a work permit?

Guest

The validity period of a work permit is issued according to the term specified in each individual case which follows, but not exceeding 02 years:

  • First, the term of the labor contract expected to be signed.
  • Second, the term of the foreign party to appoint foreign employees to work in Vietnam.
  • Third, the term of the contract or agreement signed between Vietnamese and foreign partners.
  • Fourth, the term of the contract or service provision agreement signed between Vietnamese partners and foreign partners.
  • Fifth, the term stated in the service provider’s document appointing the foreign employee to Vietnam to negotiate the service provision.
  • Sixth, the term is determined in the operating license of the authority, organization, and enterprise.
  • Seventh, the term in the service provider’s document appointing foreign employees to Vietnam to establish a commercial presence of such service provider.
  • Eighth, the term in the document proves that the foreign employee is allowed to participate in the operations of a foreign enterprise that has established a commercial presence in Vietnam.
  • Ninth, the term in the written approval to use foreign employees, except in cases which do not process a report on explaining the demand for using foreign employees.
Host

Yes, then in which case will the work permit expire?

Guest

The work permit will expire in the following cases:

  1. The work permit expires.
  2. Termination of labor contract.
  3. The content of the labor contract is not consistent with the content of the issued work permit.
  4. Working inconsistently with the contents of the issued work permit.
  5. Contracts in the fields that are grounds for expiring or terminating work permit.
  6. There is a written notice from a foreign party to stop appointing foreign employees to work in Vietnam.
  7. Enterprises, organizations, Vietnamese partners, or foreign organizations in Vietnam that use foreign employees to terminate their operations.
  8. The work permit is revoked.
Host

So, in which cases will the work permit be revoked?

Guest

The work permit will be revoked in one of the 07 cases of expiry that I just mentioned. In addition, the work permit will also be revoked in cases where the employer or foreign employee does not comply with the provisions of Decree 152/2020, and cases where foreign employees do not comply with Vietnamese law while working in Vietnam, affecting security, order and social safety.

Therefore, foreign employees must comply with Vietnamese laws during their stay and work in Vietnam to ensure that they can continue to work and avoid having their work permits revoked.

Host

So, what are the responsibilities of employers in the event of a work permit being revoked? Do they need to do any procedures?

Guest

Depending on the reason for the work permit being revoked, the employer must carry out corresponding procedures. Specifically:

Circumstance 1: If the foreign employee’s work permit is revoked in one of the 07 cases of expiry mentioned above, then within 15 days from the date the work permit expires, the employer revokes the foreign employee’s work permit and submits it to the Ministry of Labor – Invalids and Social Affairs or the Department of Labor – Invalids and Social Affairs that issued such work permit, accompanied by an official letter clearly stating the reason for revocation or for a case that falls into revocation but cannot be revoked.

Circumstance 2: Regarding an employer or foreign employee that does not comply with regulations, or a foreign employee during the process of working in Vietnam not complying with Vietnamese law, affecting security, order, and social safety, the Ministry of Labor – Invalids and Social Affairs or the Department of Labor – Invalids or the Department of Labor – Invalids and Social Affairs that issued the work permit revokes the work permit and notifies the employer to revoke the foreign employee’s work permit and return it to Ministry of Labor – Invalids and Social Affairs or the Department of Labor – Invalids or the Department of Labor – Invalids and Social Affairs that issued the work permit.

Within 05 working days from the date of receiving the revoked work permit, the Ministry of Labor – Invalids and Social Affairs or the Department of Labor – Invalids or the Department of Labor – Invalids and Social Affairs shall send an official letter confirming the revocation of the work permit to the employer.

Host

Dear listeners, so we have discussed half of our topic of work permits for foreign workers working in Vietnam. I hope that our exchange offered useful information to listeners, especially for individuals who intend to recruit foreign workers or foreign workers who plan to work in Vietnam. Because the duration of the podcast is limited, in our next episode, Lawyer Thuyet and I would like to continue to discuss the issues related to labor responsibilities as well as the rights of foreigners in Vietnam.

Thank you, Mr. Thuyet, for your very helpful discussion on foreign employees.

Guest

Thanks, Ms. Linh. I hope my sharing of this information will help listeners better understand the issues relating to foreign employees working in Vietnam.

Host

Thank you so much, Mr. Thuyet.

The Lawyers Talk Podcast about work permits will stop here, and we thank you for your interest in listening. Goodbye, and see you again in the next podcast.

If you have any questions or concerns, please leave a comment below.

For more information about BLawyers Vietnam, please see our website below The Lawyers Talk Podcast screen.

Goodbye and see you again.

The above is not official advice from BLawyers Vietnam. If you have any questions or suggestions about the above, please contact us at consult@blawyersvn.com. We would love to hear from you.

Date: 23 February 2024

Host

Thanhnguyen
Thanh Nguyen

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Ls Linhnguyen
Linh Nguyen

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Featured Guest

Thuyet Tran
Thuyet Tran

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