Answer:
- The forms in which a foreigner can work
Currently, the regulation on foreign Employees working in Vietnam has been governed in detail by the Labour Code and relevant guiding legal documents[1]. Accordingly, any foreign citizen who comes to Vietnam to work can only work under any of the following forms:
- Executing LC
- Internal secondment within an enterprise: any foreign Employee who is seconded within an enterprise is a manager, managing director, expert or technical staff of an enterprise that has established its commercial presence in the Vietnamese territory, and is temporarily seconded within this enterprise to become the commercial presence in Vietnam and have been hired by such a foreign enterprise for at least 12 months. A commercial presence[2] includes: (i) Economic organisations with foreign-invested capital; (ii) Representative offices and Branches of foreign traders in Vietnam; and (iii) Operating offices of foreign investors in business cooperation contracts;
- Executing different types of contracts or agreements on economics, commerce, finance, banking, insurance, engineering and science, culture, sports, education, occupational training, and healthcare;
- Providing services under contracts;
- Offering services for sale;
- Working for a foreign non-Governmental or an international organisation in Vietnam that is allowed to operate under the Vietnam law;
- Volunteers: any foreign Employee who works in Vietnam as a volunteer and is unpaid to implement the international treaties to which Vietnam is a member;
- Persons in charge of establishing a commercial presence;
- A manager, managing director, expert, and a technical worker. Where:
- An Expert being a foreign Employee must fall into one of the following cases: (i) Being verified in writing as an expert by his or her agency, organisation or enterprise abroad; or (ii) Having a university or higher degree or equivalent and at least 3-year experience in the field in which he or she is trained and which is appropriate for the job that he or she is going to undertake in Vietnam; special cases which are considered and decided on by the Prime Minister.
- A Manager or managing directors being a foreign Employee must fall into any of the following cases: (i) A manager being the manager of an enterprise as provided for in Article 4.24 of the Law on Enterprises or the leader or his or her deputy of an agency or organisation; or (ii) a managing director who is the leader and directly operate the unit affiliated with agency, organisation, or enterprise; and
- A technical worker is who is trained in a technical major or other major for at least 1 year and have at least 3-year experience working in the field they are trained.
- To perform a bid package or project in Vietnam.
- Kins of member of a foreign diplomatic organisation in Vietnam who is allowed to work in Vietnam under international treaties to which Vietnam is a member.
Therefore, the foreign Employee is only allowed to work in Vietnam if he or she falls into one of the cases provided for by the Vietnamese law. If the foreign Employee works in Vietnam, not in the forms mentioned above, his or her act will be viewed as violations of labour law.
2. Work permit
In addition to meeting the conditions on the form in which they work in Vietnam, the foreign Employee must also satisfy the conditions on work permit[3]. Accordingly, the foreign Employee must obtain a work permit issued by the Vietnamese competent agencies at least 15 business days prior to the date when the foreign Employee expects to work for the Employer[4]. If the foreign Employee working in Vietnam does not fall into the subject who can be granted work permits as prescribed in Article 154 of the Labour Code, the Employer must request the DOLISA to verify that the foreign Employee is not the subjects to be granted work permit. In addition, for the case where the foreign Employee works in Vietnam under the LC, after he or she is granted with a work permit, the Employer and the foreign Employee must also enter into a written LC in accordance with the Vietnamese labour laws before the date that the foreign Employee expects to work for the Employer[5].
The subject who is exempt from work permit or letter granted by a competent labour authority verifying that he or she is not required to have a work permit include:
- Any Employee staying in Vietnam for less than 3 months to offer services for sale; or
- A foreign lawyer granted legal practice certificate in Vietnam in accordance with the Lawyers Laws;
- A foreigner marrying Vietnamese who live in Vietnam;
- A foreigner who is an owner or capital member of a limited liability company with total capital of at least 3 billion dongs.
- A foreigner who is Chairman or member of the board of directors of a joint-stock company with total capital of at least 3 billion dongs;
- Kin of member of a diplomatic organisation in Vietnam as mentioned above; or
- A foreigner working as an expert, manager, managing director, or technician for less than 30 days in Vietnam, maximum 03 times in a year.
3. Legal consequence for illegal employment of the foreigner
Any foreign Employee is only allowed to work in Vietnam in one of the forms prescribed by law, and depending on specific circumstances, the Employer will have to conduct the procedure to obtain work permit or letter verifying that the foreign Employee is not the subject required to have the work permit. If the Employer hires the Employee to work not in the forms allowed by law or if the Employee has satisfied the condition on the form in which he or she works but do not have work permit or letter verifying that he or she is not the subject required to have work permit or use expired work permit, then the Employer and the foreign Employee as well may be subject to sanctions as prescribed by the Vietnamese law. Specifically:
- For the foreign Employee;
- The Foreigner working in Vietnam without a work permit or confirmation for exemption from work permits could be deported in accordance with Vietnamese laws[6].
- For the Employer:
- The violating Employer could face the following administrative penalties[7]:
- Monetary fine from VND2,000,000 to VND6,000,000 for not reporting or falsely reporting on employment of foreigners at the request of the labour management State authority; and
- Monetary fine for employing foreigners without work permit/confirmation for exemption from a work permit or with expired work permit/confirmation for exemption from VND60,000,000 to VND 90,000,000 for 01 to 10 persons.
[1] Article 2.1 and Article 3 of Decree 152/2020/ND-CP of the Government dated 30/12/2020
[2] Article 2 of Circular 35/2016/TT-BTC of Ministry of Finance dated 28 December 2016
[3] Article 151.1(d) of the Labour Code
[4] Article 11.1 of Decree 152/2020/ND-CP of the Government dated 30 December 2020
[5] Article 11.3 of Decree 152/2020/ND-CP of the Government dated 30 December 2020
[6] Article 153.2 of the Labour Code and Article 31.5 of Decree 28/2020/ND-CP of the Government dated 01 March 2020
[7] Article 31.1 and 31.4 of Decree 28/2020/ND-CP of the Government dated 01 March 2020
