Many businesses have the need to recruit foreigners to work in Vietnam. However, not all foreign workers employed by an enterprise have a work permit. So, if the enterprise employs foreign workers without a work permit, what sanctions they should face?
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Conditions for foreign citizens to work in Vietnam
Pursuant to Article 151 of the Labor Code 2019 stipulating that the workers who are foreign citizens working in Vietnam must satisfy the following conditions:
1. A foreign employee means a person who has a foreign nationality and:
a) is at last 18 years of age and has full legal capacity;
b) has qualifications, occupational skills, practical experience and adequate health as prescribed by the Minister of Health;
c) is not serving a sentence; does not have an unspent conviction; is not undergoing criminal prosecution under his/her home country’s law or Vietnam’s law;
d) has a work permit granted by a competent authority of Vietnam, except in the cases stipulated in Article 154 of this Labor Code.
2. The duration of a foreign employee’s employment contract must not exceed that of the work permit. When a foreign employee in Vietnam is recruited, both parties may negotiate conclusion of multiple fixed-term labor contracts.
3. Foreign employees working in Vietnam shall comply with and shall be protected by the labor law of Vietnam, unless otherwise prescribed by treaties to which Vietnam is a signatory.
Foreigners who are exempted from a work permit
Article 154 of the Labor Code 45/2019/QH14, a foreign employee is not required to have the work permit if he/she:
- Is the owner or capital contributor of a limited liability company with a capital contribution value conformable with regulations of the Government.
- Is the Chairperson or a member of the Board of Directors of a joint-stock company a capital contribution value conformable with regulations of the Government.
- Is the manager of a representative office, project or the person in charge of the operation of an international organizations or a foreign non-governmental organization in Vietnam.
- Enters Vietnam for a period of less than 03 months to do marketing of a service.
- Enters Vietnam for a period of less than 03 months to a resolve complicated technical or technological issue which (i) affects or threatens to affect business operation and (ii) cannot be resolved by Vietnamese experts or any other foreign experts currently in Vietnam.
- Is a foreign lawyer who has been granted a lawyer’s practising certificate in Vietnam in accordance with the Law on Lawyers.
- In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.
- Gets married with a Vietnamese citizen and wishes to reside in Vietnam.
- Other circumstances specified by the Government.
Note: Although there are provisions on work permit exemption, in some cases the employer needs to confirm that the foreigner is subject to such cases at least 7 working days in advance from the date of foreign workers begin to work/study/teach in Vietnam.
Penalties for employing foreign workers without a work permit
In case of failure to comply with regulations on work permit application, foreign workers and the enterprise employing foreign workers shall be fined as below:
- Foreign workers working in Vietnam who commit one of the following acts shall be subject to a fine of between VND 15,000,000 and VND 25,000,000 (specified in Clause 3, Article 31 of the Decree No. 28/2020/ND-CP):
+ Working without a work permit or without a written certification of subject to work permit exemption as prescribed by laws;
+ Using an expired work permit or expired written certification of subject to work permit exemption.
At the same time, to be expelled from Vietnam if they are working in Vietnam, yet do not have a work permit or do not have a written certification of subject to work permit exemption.
- For enterprises employing foreign workers to work in Vietnam without a work permit:
+ For violations of between 01 and 10 people, a fine of from VND 60,000,000 to VND 90,000,000 shall be imposed.
+ For violations of between 11 and 20 people, a fine of between VND 90,000,000 and VND 120,000,000 shall be imposed.
+ For violations of 21 people or more, a fine of between VND 120,000,000 and VND 150,000,000 shall be imposed.
In addition, the enterprise will also be subject to an additional penalty of suspending operation from 01 to 03 months.
The above are the most useful information on penalties for employing foreign workers without a work permit.
For more details regarding the regulations on work permits as well as procedures for applying work permits for foreign workers, please contact Nhi Gia via hotline +84 1900 6654 or send a message via Facebook Fanpage at https://www.facebook.com/nhigia. An experienced team of experts will directly support the fastest!