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Regulations on conditions for recruiting and employing foreign workers in Vietnam

Regulations On Conditions For Recruiting And Employing Foreign Workers In Vietnam.
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In the context of global economic integration, international migration is a concern for many countries. The Vietnamese labor market has also become more flexible and diverse.

The number of foreign workers coming to Vietnam has been increasing rapidly in recent years. However, not all foreign workers and employers of foreign workers fully understand the legal regulations on employment, recruitment, and labor management. And so, Quan Lieu Service would like to share with you an article on the regulations on the conditions for the recruitment and employment of foreign workers in Vietnam.

1. Legal basis for foreign workers:

  • Labor Code 2019 issued on November 20, 2019
  • Decree 152/2020/ND-CP issued on December 30, 2020
  • Decree 28/2020/ND-CP issued on March 01, 2020

2. Conditions for foreign workers to work in Vietnam

Article 151 of the Labor Code 2019 stipulates the conditions for foreign workers to work in Vietnam as follows:

Foreign workers working in Vietnam are individuals who are foreign nationals and must meet the following conditions:
a) Must be 18 years of age or older and having full civil act capacity;
b) Must have professional, technical, and vocational qualifications, work experience, and meet the health requirements according to the regulations of the Minister of Health;
c) Cannot be individuals serving a sentence, that have not had their criminal record cleared, or are being pursued for criminal violations under the laws of foreign countries or Vietnamese law;
d) Must have a work permit issued by the competent state authority of Vietnam, except for cases stipulated in Article 154 of this Code.
The term of the labor contract for foreign workers working in Vietnam shall not exceed the term of the work permit. When using foreign workers to work in Vietnam, the two parties may agree to conclude multiple labor contracts specifying the term.”
Foreign workers working in Vietnam must comply with Vietnamese labor laws and are protected by Vietnamese law, except in cases where international treaties of which the Socialist Republic of Vietnam is a member state have different regulations.”

Therefore, when your company hires foreign workers to work in Vietnam, firstly, the foreign workers must meet specific conditions, including:

  • Be over 18 years old and have full civil act capacity
  • Have professional qualifications and suitable work experience
  • Ensure good medical contitions to work in accordance with the regulations of the Ministry of Health
  • Not currently serving a sentence or having a criminal record that has not been expunged or being pursued criminal responsibility in accordance with Vietnamese law or foreign law
  • Have a work permit issued by a competent authority in Vietnam.

3. Recruitment conditions and use of foreign workers by enterprises in Vietnam

To ensure stability in the labor market, labor laws have detailed regulations on this issue. In recent years, the number of foreign workers coming to work in Vietnam has increased, but not all businesses using foreign workers are aware of the legal requirements for the conditions that must be met when employing foreign workers. Therefore, if your business uses foreign workers, please note the following conditions:

  • Article 152 of the 2019 Labor Code stipulates the conditions for the recruitment and use of foreign workers in Vietnam as follows:

“1. Enterprises, agencies, organizations, individuals, and contractors are only allowed to recruit foreign workers for managerial, executive, professional, and technical positions that Vietnamese workers are not able to meet the needs of production and business.
2.Enterprises, agencies, organizations, and individuals must provide justification for the need to employ foreign workers and receive written approval from the competent state agency before recruiting foreign workers to work in Vietnam.
3. Contractors must specify the specific positions, professional qualifications, technical skills, work experience, and work hours required to use foreign workers to implement the bidding package and receive written approval from the competent state agency before recruiting and using foreign workers to work in Vietnam.”

 Article 4 of Decree 152/2020 stipulates the determination of the demand for foreign labor as follows:

“a) At least 30 days prior to the expected date of using foreign workers, the employer (excluding contractors) is responsible for determining the demand for foreign workers for each job position that Vietnamese workers cannot fulfill and reporting it to the Ministry of Labor, Invalids and Social Affairs or the People’s Committee of the centrally-run province or city (hereinafter referred to as the provincial People’s Committee) where the foreign worker is expected to work, according to Form 01/PLI Appendix I issued together with this Decree.
During the implementation process, if there is a change in the demand for foreign workers, the employer must report to the Ministry of Labor – Invalids and Social Affairs or the provincial People’s Committee according to Form 02/PLI Appendix I issued together with this Decree at least 30 days prior to the expected date of using foreign workers.”

Therefore, if your company needs to recruit foreign workers, please note:

  • Foreign workers can only be recruited for managerial, executive, specialized, and technical positions that Vietnamese workers cannot fulfill according to production and business needs.
  • The company must justify the demand for foreign workers and obtain approval in writing from the competent state agency before recruiting foreign workers.

4. Administrative penalties for violations of regulations on foreign workers in Vietnam

 Article 31 of Decree No. 28/2020/ND-CP provides the following penalties for violations of regulations on foreign workers in Vietnam:

“1. A fine of between VND 1,000,000 and VND 3,000,000 shall be imposed on employers for any of the following violations:
a) Failure to report or report inaccurately and on time on the use of foreign workers as requested by the labor-management agency;
b) Failure to submit a copy of the signed labor contract to the agency that issued the work permit for cases where the foreign worker is employed under a labor contract.
A fine of between VND 5,000,000 and VND 10,000,000 shall be imposed per worker, but not exceeding VND 75,000,000 in total, on employers who misuse foreign workers in a manner that does not comply with the contents stated in the work permit or confirmation document not subject to work permit issuance.
A fine of between VND 15,000,000 and VND 25,000,000 shall be imposed on foreign workers who work in Vietnam and commit any of the following violations:
a) Working without a work permit or confirmation document not subject to work permit issuance as required by law;
b) Using a work permit or confirmation document not subject to work permit issuance that has expired.
Employers who use foreign workers in Vietnam without a work permit or confirmation document not subject to work permit issuance or use foreign workers with expired work permits or confirmation documents not subject to work permit issuance shall be fined according to the following levels:
a) From VND 30,000,000 to VND 45,000,000 for violations involving 01 to 10 workers;
b) From VND 45,000,000 to VND 60,000,000 for violations involving 11 to 20 workers;
c) From VND 60,000,000 to VND 75,000,000 for violations involving 21 workers or more.
Additional penalties
Foreign workers who work in Vietnam without a work permit or confirmation document not subject to work permit issuance will be deported from Vietnam if they violate the provisions of Clause 3 of this Article.”

5. Therefore, the responsibilities of foreign labor users and foreign workers should remember the following:

  • Employers who use foreign labor without obtaining a work permit or a certificate of exemption from work permit issuance according to regulations will be subject to administrative penalties.
  • Before recruiting and employing foreign workers, the foreign labor user must explain the need for labor and obtain approval in writing from the competent state agency.
  • Foreign workers must present their work permits when requested by the competent state agency.
  • Foreign workers who work in Vietnam without a work permit will be required to leave the country or be deported according to the laws on immigration, emigration, transit, and residence of foreign nationals in Vietnam.
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