Due to the high demand for qualifications, expertise and skills, Vietnam-based enterprises tend 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 or she faces?
Note the following issues in this matter.
1. Why must foreign employees have WPs to work 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 that the conditions for foreign employees working in Vietnam include:
(i) Being at least 18 years old and fully capable of civil acts.
(ii) Having professional qualifications, techniques, skills, work experience and having "sufficient health."
(iii) Not being a person who is serving a sentence or has not been cleared of criminal charges under foreign or Vietnamese laws.
(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 in some cases, including one of the following:
(i) Foreign employees hold important positions in foreign-owned enterprises such as capital-contributing members or owners of limited liability companies or 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 three times in a calendar year.
(iii) Foreign employees working in representative offices and projects of international organizations or nongovernmental organizations in Vietnam or entering Vietnam to perform work under official development assistance 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 who 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.
(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 or WPEC or with an expired WP, the following levels of fine are as follows:
- From 60 million Vietnamese dong (approximately $2,624) to 90 million Vietnamese dong (approximately $3,936) for violations involving one to 10 people.
- From 90 million Vietnamese dong (approximately $3,936) to 120 million Vietnamese dong (approximately $5,248) for violations involving 11 to 20 people.
- From 120 million Vietnamese dong (approximately $5,248) to 150 million Vietnamese dong (approximately $6,560) for violations involving 21 or more people.
(ii) For employees working in Vietnam without the WP or WP exemption, a fine of 15 million Vietnamese dong (approximately $656) to 25 million Vietnamese dong (approximately $1,093) shall be imposed. 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 employee may not be protected by Vietnamese law.
Linh Nguyen is a senior paralegal with BLawyers Vietnam in Ho Chi Minh City, Vietnam. © 2022 BLawyers Vietnam. All rights reserved. Reposted with permission of Lexology.
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