1.The forms in which foreigners can work
Currently, the regulation on foreign Employees working in Vietnam has been governed in detail by the Labor Code and relevant guiding legal documents[1]. Accordingly, foreign citizens who come to Vietnam to work can only work under one of the following forms:
- Execute LCs;
- Internal secondment within an enterprise: foreign Employees who are seconded within an enterprise are managers, managing directors, experts or technical staff of an enterprise which has established its commercial presence in the Vietnamese territory, and are temporarily seconded within this enterprise to become the commercial presence in Vietnam and have been hired by this 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 international organisation in Vietnam which is allowed to operate under the Vietnam law;
- Volunteers: foreign Employees who work in Vietnam as volunteers and are unpaid to implement the international treaties to which Vietnam is a member;
- Persons in charge of establishing a commercial presence;
- Managers, managing directors, experts, and technical workers. Where:
- Experts being foreign Employees must fall into one of the following cases: (i) Being verified in writing as experts by their agencies, organisations or enterprises abroad; or (ii) Having university or higher degrees or equivalents and at least 3 year experience in the field in which they are trained and which is appropriate for the job that they are going to undertake in Vietnam; special cases which are considered and decided on by the Prime Minister;
- Managers or managing directors being foreign Employees must fall into one of the following cases: (i) Managers being the managers of enterprises as provided for in Article 4.18 of the Enterprise Law or the leaders or their deputies of an agency or organisation; or (ii) Managing directors who are the leaders and directly operate the units affiliated with agencies, organisations or enterprises; and
- Technical workers are those who are trained in a technical major or other majors for at least 1 year and have at least 3 year experience working in the field they are trained.
- Participating in a bidding package or project in Vietnam.
Therefore, foreign Employees are only allowed to work in Vietnam if they fall into one of the cases provided for by the Vietnamese law. If foreign Employees work in Vietnam not in the forms mentioned above, their acts will be viewed as violations of labour law.
2. Work permits
In addition to meeting the conditions on the form in which they work in Vietnam, foreign Employees must also satisfy the conditions on work permits[3]. Accordingly, foreign Employees must obtain work permits issued by the Vietnamese competent agencies at least 15 business days prior to the date when foreign Employees expect to work for their Employers[4]. If foreign Employees working in Vietnam do not fall into the subjects who can be granted work permits as prescribed in Article 172 of the Labor Code, the Employer must request the DOLISA to verify that such foreign Employees are not the subjects to be granted work permits. In addition, for the case where foreign Employees work in Vietnam under LCs, after they are granted work permits, the Employer and foreign Employees must also enter into written LCs in accordance with the Vietnamese labour law before the date foreign Employees expect to work for the Employer[5].
The subjects who are exempt from work permits or letters granted by competent labour authorities verifying that they are not required to have work permits include:
- Employees staying in Vietnam for less than 3 months to offer services for sale; or
- Employees staying in Vietnam for less than 3 months to deal with technological incidents or circumstances, complicated technologies which affect or threaten to affect production or business activities and which cannot be handled by Vietnamese experts or foreign experts currently staying in Vietnam; or
- Employees staying in Vietnam to work as experts, managers, executive directors or technical workers and having a working duration of less than 30 days and an accumulated working duration not more than 90 days in 01 year.
3. Legal consequences in case of using foreign Employees illegally
Foreign Employees are 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 permits or letters verifying that foreign Employees are not the subjects required to have work permits. If Employers hire Employees to work not in the forms allowed by law or if Employees have satisfied the condition on the form in which they work but do not have work permits or letters verifying that they are not the subjects required to have work permits or use expired work permits, then the Employers and foreign Employees as well may be subject to sanctions as prescribed by the Vietnamese law. Specifically:
- For foreign Employees: Foreign Employees working in Vietnam and not having work permits or letters verifying that they are not the subjects required to have work permits will be expelled in accordance with the Vietnamese law[6].
- For Employers:
Employers may be subject to the following administrative sanctions[7]:
- A fine of VND1,000,000 to VND2,000,000 will be applied to the cases where Employers do not report the use of foreign Employees to State labour management agencies, or they do make reports which, however, do not satisfy the requirements on the content and time limit prescribed by law; and
- Employers hiring foreign Employees who do not have work permits or letters verifying that they are not the subjects required to have work permits may be subject to a fine of VND60,000,000 to 90,000,000 with respect to 1-10 foreign Employees, and their business operations may be suspended from 1-3 months for this violation.
[1]Articles 2.1 and 3 Decree 11/2016/NĐ-CP dated 03/02/2016
[2]Article 2 Circular 35/2016/TT-BCT dated 28/12/2016
[3]Article 169.1(d) Labor Code
[4]Article 12.1 Decree 11/2016/NĐ-CP dated 03/02/2016
[5]Article 12.3 Decree 11/2016/NĐ-CP dated 03/02/2016
[6]Article 171.1 Labor Code and Article 18.1 Decree 11/2016/NĐ-CP dated 03/02/2016
[7]Article 22 Decree 95/2013/NĐ-CP dated 22/08/2013 as amended and supplemented by Decree 88/2015/NĐ-CP dated 07/10/2015