- Conditions for being granted Work Permit
According to some current regulations, in order to apply for a Work Permit, a foreign worker must fully meet the following conditions:
– Foreign workers must have full civil capacity;
– Foreign workers must have health status suitable for the job requirements.
– The foreign worker must not be a person who is serving a sentence or has not yet been expunged or is being examined for penal liability in accordance with foreign or Vietnamese laws. .
– Having approval of the need to employ foreign workers, except for cases where the need to employ foreign workers is not required.
The foreign worker must be a manager, executive director, expert or technical worker with all the proving documents as prescribed in Article 3 of Decree 152/2020/ND-CP.
- Preliminary procedures for applying for a Work Permit
The issuance of Work Permit for foreigners will basically be done in two steps: Registering the need to employ foreign workers and applying for a Work Permit.
At least 30 days before the date on which foreign workers are expected to be employed, the employer (except contractor) shall determine the demand for foreign workers for every job position for which Vietnamese workers are underqualified. At least 15 working days before the day on which a foreign worker starts to work, the applicant shall submit an application for work permit to the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs of the province where he/she is expected to work.
- Validity period and renewal of a Work Permit
The validity period of a work permit shall coincide with any of the period/duration below but not exceeding 2 years:
– Validity period of the employment contract to be signed.
– Duration of the foreign worker’s assignment in Vietnam.
– Duration of the contract or agreement concluded between Vietnamese and foreign partners.
– Duration of the service contract or agreement concluded between Vietnamese and foreign partners.
– Duration determined in the document issued by the service provider to send the foreign worker to Vietnam to negotiate the service provision.
-Validity period in the operation license of the agency, organization or enterprise.
– Duration determined in the document issued by the service provider to send the foreign worker to Vietnam to establish a commercial presence.
– Duration stated in a document proving the foreign worker’s eligibility to participate in the operation of a foreign company that has established its commercial presence in Vietnam.
– Duration stated in the acceptance of employment of foreign worker unless a report on demand for foreign workers is not required.
- Legal consequences when foreign workers working in Vietnam do not have a Work Permit
In fact, agencies in charge will tend to consider the Labor Contract signed with foreign workers without a Work Permit to be invalid because it is contrary to legal regulations. However, the Vietnamese courts in different cases also consider the fault factor to conclude whether the contract is invalid or not, such as the fact that if the foreign worker does not have a work permit due to the fault of the employer, that Contract will still be in effect.
From the perspective of administrative sanctions, foreign workers working in Vietnam must have a Work Permit or confirm the case that a work permit is not required. Therefore, when enterprises fail to comply with the provisions of Labor Code of Decree 152/2020/ND-CP on applying for Work Permit for foreign workers, employers will be administratively sanctioned according to the provisions of Decree 28/2020/ND-CP on administrative penalties for violations arising from labor, social insurance and sending Vietnamese workers abroad under contracts.