The international integration process is currently creating a flow of labor migration between countries worldwide, and Vietnam is no exception. As a developing nation, Vietnam has become an attractive destination for many foreign workers. This article provides some legal issues that foreign workers need to be aware of to ensure compliance with the laws and regulations while working in Vietnam.
1. Conditions for foreign workers to come to Vietnam to work
Foreign workers in Vietnam are foreign nationals and need to meet all of the following conditions:
- Be 18 years of age or older and have full civil capacity;
- Have professional qualifications, technical skills, expertise, work experience, and meet the health requirements as prescribed by the Minister of Health;
- Not be serving a sentence or still have a criminal record that has not been expunged, or be under criminal prosecution according to the laws of the foreign country or Vietnam;
- Hold a work permit issued by the competent state authority of Vietnam, except for cases specified in Article 154 of the 2019 Labor Code.
In addition, the conditions for recruiting and employing foreign workers in Vietnam are also clearly regulated for enterprises, agencies, organizations, individuals, and contractors, etc. (hereinafter referred to as “Employers”). According to these regulations, when Employers have a demand to recruit foreign workers, they are only allowed to recruit foreign workers for managerial, executive, expert, and technical positions that Vietnamese workers cannot meet according to production and business needs.
Furthermore, before employing foreign workers, Employers (except for contractors) must justify the labor demand and obtain written approval from the competent state agency. As for Employer contractors, they must specify the specific job positions, professional qualifications, technical skills, work experience, and the necessary working time for foreign workers to meet the requirements. Additionally, they also need to obtain written approval from the competent state agency.
2. Cases of foreign workers working in Vietnam are not eligible for work permits
According to the provisions of the labor law, there will be some cases where foreign workers are not eligible for a work permit, specifically as follows:
- Being the owner or capital contributor of a limited liability company with the capital contribution value as prescribed by law; or
- Being the chairman or member of the board of directors of a joint-stock company with capital contribution value as prescribed by law; or
- Being the head of a representative office or project or taking main responsibility for the operation of international organizations or foreign non-governmental organizations in Vietnam; or
- Entering Vietnam with a term of less than 3 months to make a service offering; or
- Entering Vietnam for less than 3 months to handle problems, technical situations, complex technologies that arise, affecting or potentially affecting production and business that Vietnamese experts and foreign experts currently in Vietnam cannot handle; or
- Being a foreign lawyer who has been granted a license to practice law in Vietnam in accordance with the Law on Lawyers; or
- Cases under the provisions of international treaties to which Vietnam is a contracting party; or
- Foreigners marrying Vietnamese and living in Vietnamese territory.
3. Regulations related to work permits of foreign workers
According to current legal regulations, the maximum validity period of a work permit in Vietnam is 2 years. If an extension is desired, it can only be granted once, with a maximum extension period of 2 years.
Both employers and foreign workers need to be aware of situations where the work permit becomes invalid, such as:
- Expiration of the work permit.
- Termination of the labor contract.
- The content of the labor contract does not match the content of the issued work permit.
- Contracts in the fields that are the basis for the expiration or termination of the work permit;
- There is a written notice from the foreign party to stop sending foreign workers to work in Vietnam;
- Enterprises, organizations, partners on the Vietnamese side or foreign organizations in Vietnam employing foreigners cease to operate;
- Revocation of the work permit.
It is essential to note that the specific regulations regarding the revocation of the work permits are stated in Article 20 of Decree No. 152/2020/NĐ-CP. A work permit may be revoked when it expires according to legal regulations; when Employers or foreign workers fail to comply with the legal regulations; or when foreign workers do not comply with Vietnamese law, affecting national security, public order, and social safety.
In addition to the aforementioned analysis, when Employers have a demand to recruit foreign workers, they must also follow other procedures such as applying for temporary residence cards, declaring personal income tax, and contributing to social insurance and health insurance, etc. as required by the law for foreign workers.
The current legal framework for managing foreign workers in Vietnam is relatively clear and specified in legal documents, such as the Labor Code, Law on entry, exit, transit and residence of foreigners in Vietnam, etc. However, in practice, there may still exist certain limitations and issues that need to be addressed. To overcome these limitations, it is necessary to continue improving the procedures and regulations related to foreign workers and to keep Employers and foreign workers updated with any new legal provisions.