Due to the high demand for qualifications, expertise, skills, Vietnam-based enterprises have a trend to employ foreign employees to work in Vietnam. The foreign employees must obtain a work permit (“WP“) or a WP exemption certificate (“WPEC”) before entering a labor contract with the employer. So, if a foreign employee works in Vietnam without a WP, what are the legal risks he/ she faces?
BLawyers Vietnam would like to note some issues in this matter.
1. Why do foreign employees must have WPs for working in Vietnam?
A WP is a document that a competent labor-management agency of Vietnam issues to a foreign employee to legally work in Vietnam. Labor Code 2019 stipulates the conditions for foreign employees working in Vietnam including:
(i) Being at least 18 years old and fully capable of civil acts;
(ii) Having professional qualifications, techniques, skills, work experience, having sufficient health;
(iii) Not a person who is serving a sentence or has not been cleared of criminal charges under foreign or Vietnamese laws; and
(iv) Having a WP.
Thus, foreign employees must meet the above requirement to work in Vietnam. Accordingly, unless the employee is exempt from the WP, having a WP is one of the mandatory conditions.
2. Which cases are foreign employees exempt from WPs?
Foreign employees must not apply for WPs in some cases. Instead, they can obtain WPECs for the cases including:
(i) Foreign employees hold important positions in foreign-owned enterprises such as capital contributing members or owners of limited liability companies, members of the Board of Directors of joint-stock companies;
(ii) Foreign employees entering Vietnam for a short-term period of fewer than 30 days and no more than 03 times in a calendar year;
(iii) Foreign employees working in representative offices and projects of international organizations or non-governmental organizations in Vietnam or entering Vietnam to perform work under ODA projects;
(iv) Foreign employees are students from overseas schools who have internship agreements with Vietnamese enterprises, and foreign volunteers;
(v) Foreign employees are foreign lawyers who have been granted a license to practice law in Vietnam or foreign employees work in the field of journalism, or are sent to Vietnam by a foreign organization to teach and conduct research at international schools;
(vi) Foreign employees moving internally within 11 service industries in Vietnam’s service commitment schedule with the World Trade Organization;
(vii) Foreign employees entering Vietnam under cooperation agreements or for diplomatic purposes; or
(viii) Foreign employees marrying Vietnamese people.
3. What are the legal risks when foreign employees work in Vietnam without WPs?
According to the regulations, when foreign employees work in Vietnam without WPs (except for the case of WPEC), both the foreign employees and enterprises are sanctioned for administrative violations as follows:
(i) For enterprises using foreign employees without the WP/ WPEC or expired WP, the following levels of fine are as:
- From VND 60-90 million for violations involving 01 to 10 people;
- From VND 90-120 million for violations involving 11 to 20 people;
- From VND 120-150 million for violations involving 21 or more people.
(ii) For employees working in Vietnam without the WP/ WP exemption, a fine of VND 15-25 million shall be imposed. In addition, the employee, in this case, might be expelled from Vietnam.
In addition, if a dispute arises between the foreign worker and the enterprise about the labor relationship, the foreign employees may not be protected by Vietnamese law for their lawful rights and interests.
Should you have any questions about the above contents, please revert to BLawyers Vietnam at firstname.lastname@example.org. We are more than happy to hear from you!
Date: 15 March 2022
Writer: Linh Nguyen
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