In the context of investment in Vietnam, the employment of foreign workers is an important issue that requires attention from FDI enterprises and demands a thorough understanding of the relevant legal conditions. The article by DNP Viet Nam Law Firm provides an overview of the conditions, entitlements, responsibilities, and key considerations when hiring foreign workers.
1. Conditions for Foreign Workers to Be Employed in Viet Nam
According to Article 151 of the 2019 Labor Code, foreign nationals wishing to work in Vietnam must meet the following conditions:
(i) Be a foreign national;
(ii) Be at least 18 years old and have full legal capacity;
(iii) Possess professional qualifications, technical skills, work experience and be in good health in accordance with the regulations of the Minister of Health;
(iv) Not be currently serving a criminal sentence, have not yet had a criminal record expunged, or be under criminal investigation under foreign or Vietnamese law;
(v) Hold a work permit issued by a competent Vietnamese authority. The maximum term of a work permit is 02 years and may be extended once for an additional maximum term of 02 years (pursuant to Article 155 of the 2019 Labor Code).
(See also Article 151 of the 2019 Labor Code)
2. Conditions for FDI Enterprises to Employ Foreign Workers
According to Article 152 of the 2019 Labor Code, enterprises may only employ foreign workers for managerial, executive, expert, and technical positions for which Vietnamese workers are not yet qualified. In such cases, the enterprise must provide justification and make specific declarations as follows:
(i) The employer must justify the need to employ foreign workers and obtain written approval from the competent authority. Specifically, under Point a, Clause 1, Article 4 of Decree No. 152/2020/ND-CP (as amended by Clause 2, Article 1 of Decree No. 70/2023/ND-CP), at least 15 days prior to the expected date of employing the foreign worker, the employer must determine the need for foreign labor for each job position that Vietnamese workers cannot meet and submit a report explaining the need to the Department of Labor, War Invalids and Social Affairs.
In case of any changes in the demand for foreign workers regarding position, job title, work format, number of employees, or location, the employer must report to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs at least 15 days before the intended date of employment.
(ii) Contractors, before recruiting and employing foreign workers to work in Vietnam, must specify the job positions, qualifications, technical skills, work experience, and duration of employment required for the execution of the contract package, and obtain written approval from the competent authority.
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3. Notes When Employing Foreign Workers
Regarding the term of the labor contract:The duration of the labor contract must not exceed the validity period of the work permit. Therefore, the parties may agree to enter into multiple fixed-term labor contracts (Clause 2, Article 151 of the 2019 Labor Code).
Regarding the work permit: Except for cases where the foreign worker is exempt from the requirement to obtain a work permit, the employer must verify the validity of the employee’s work permit. A foreign worker working in Vietnam without a valid work permit shall be subject to expulsion or deportation, and the employer may also face sanctions in accordance with the law (Clauses 2 and 3, Article 153 of the 2019 Labor Code).
4. Reporting on the use of foreign workers:
Pursuant to Article 6 of Decree No. 152/2020/ND-CP, employers must submit biannual and annual reports on the employment of foreign workers by July 5 and January 5 of the following year, respectively. By July 15 and January 15 of the following year, or upon ad hoc requests, the Department of Labor, War Invalids and Social Affairs is responsible for reporting to the Ministry of Labor, War Invalids and Social Affairs on the situation of foreign workers employed within its jurisdiction.
5. Sanctions for non-compliance with regulations on foreign workers:
Employers who fail to comply with the regulations on foreign workers may be subject to administrative fines ranging from VND 1,000,000 to VND 150,000,000 (see Decree No. 12/2022/ND-CP on administrative penalties for violations related to foreign workers employed in Vietnam).
Compliance with legal regulations on foreign labor not only enables FDI enterprises to leverage international human resources effectively but also mitigates potential business risks.
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