Vietnam has become an increasingly attractive destination for foreign workers thanks to its stable working environment and rapidly growing economy. Among these foreign workers, many are married to Vietnamese citizens and seek employment in local enterprises. However, to work legally in Vietnam, foreigners, even those married to Vietnamese citizens, must still comply with labor laws, most notably regulations relating to work permits (“Work Permit”).
According to current laws, foreigners who are married to Vietnamese citizens and residing in Vietnam are eligible for a Work Permit exemption. However, this exemption is not granted automatically. Instead, such individuals must obtain a written confirmation from the competent authority stating that they are not subject to Work Permit requirements before commencing employment.
Additionally, another important practical issue concerns the probation period for foreign workers. Under Vietnamese law, there is no specific provision allowing the execution of a separate probation contract for foreign employees. As such, both employers and foreign employees must choose an appropriate form to record the probation process in compliance with legal requirements and to avoid legal risks.
In this article, Apolat Legal will analyze the relevant legal regulations and propose practical solutions for each situation.
1. Is a Work Permit required?
Pursuant to Article 151.1 of the Labor Code 2019, foreign workers seeking employment in Vietnam must meet certain conditions, including obtaining a Work Permit issued by the competent authority.
However, Article 154.2 of the Labor Code 2019 provides for specific cases in which foreigners are exempt from Work Permits, this includes foreigners who are married to Vietnamese citizens and residing in Vietnam.
Even though these individuals are exempt from obtaining a Work Permit, they are still required to complete the administrative procedure of applying for a confirmation of exemption from the competent labor authority. Under Article 8.2 of Decree 152/2020/ND-CP, this confirmation must be obtained at least 10 days prior to the intended start date of employment in Vietnam.
Therefore, foreigners married to Vietnamese citizens and legally residing in Vietnam are not required to obtain a Work Permit but must secure a written confirmation of exemption to work legally in Vietnam.
2. Probation – Is it permissible to sign a probation contract?
Under Vietnamese labor laws, foreign employees may work in Vietnam through various forms of employment, including labor contracts where an employment relationship arises between the parties. This suggests that Vietnamese law does not currently recognize separate probation contracts for foreign workers, only permitting formal labor contracts.
In practice, based on the interpretation of some competent authorities and real-world application, probation contracts signed with foreign workers have been declared invalid for violating Work Permit regulations. This is because the law only allows foreigners to work after obtaining a Work Permit or receiving confirmation of exemption, and in both cases, employment must be formalized through a standard labor contract, not a probation contract.
Therefore, to ensure compliance with Vietnamese law, employers should avoid signing probation contracts with foreign workers, even when the latter are married to Vietnamese citizens and exempt from Work Permit requirements.
To meet employers’ expectations of conducting probation while complying with the law, Apolat Legal proposes the following two solutions:
(i) Option 1: Sign a formal labor contract incorporating probation terms
Although the law prohibits employers from signing separate probation contracts with foreign employees, Article 24.1 of the 2019 Labor Code allows parties to agree on probation terms directly within the official labor contract. This solution maintains the trial period while adhering to the legal form and requirements applicable to foreign workers.
Specifically, the parties may execute a formal labor contract that includes agreed probation terms. If the probation is successful, the contract remains in effect without the need for any appendix or new agreement, and the foreign employee continues as a regular employee under the same contract. If not, the contract can be terminated in accordance with legal provisions.
In practice, several local labor authorities in Vietnam accept this approach as a flexible solution that allows businesses to assess foreign workers while remaining legally compliant. However, acceptance may vary by locality. Employers are advised to consult with relevant authorities in advance.
(ii) Option 2: Short-term employment for less than 30 days
If the foreign employee works in Vietnam for fewer than 30 days and no more than three times in a year, and occupies roles such as manager, executive director, expert, or technical worker,… they are not required to obtain a Work Permit, according to Articles 7.8 and 8.2 of Decree 152/2020/ND-CP.
In this case, the individual is also exempt from the confirmation of exemption procedure but must submit a written report to the local labor authority at least 03 days before commencement. The report must include: (i) the individual’s personal details and (ii) the work duration (start and end date).
In practice, this is a flexible option for employers and foreign workers, especially for short-term probation. The parties may enter into a labor contract with a maximum term of 30 days. No Work Permit or confirmation of exemption is required, only a written report submitted to the labor authority.
After this period, the foreign employee may proceed to apply for Work Permit exemption under the spousal category and subsequently sign a long-term formal labor contract with the company.
3. Validity of Work Permit Exemption Confirmation and Other Obligations
Under Article 8.2 of Decree 152/2020/ND-CP, the confirmation of Work Permit exemption for foreign employees is valid for up to 2 years. Once expired, the individual must reapply for confirmation if they wish to continue working in Vietnam. The renewed confirmation is also limited to a 2-year term.
Failure to obtain or renew this confirmation or continuing to work after it has expired, constitutes a legal violation. Foreigners in this case may face administrative fines ranging from VND 15,000,000 to 25,000,000 and expulsion from Vietnam, pursuant to Articles 32.3 and 32.5 of Decree 12/2022/ND-CP.
In addition, during employment in Vietnam, foreign employees must fulfill their personal income tax obligations and, if applicable, participate in compulsory social insurance in accordance with Vietnamese law.
Although the procedure for foreigners married to Vietnamese citizens is more favorable due to the Work Permit exemption, it is crucial to strictly comply with the confirmation process, choose a proper form of probation, and meet all tax and social insurance obligations.
Apolat Legal hopes this article has provided foreign employees and employers with a clearer understanding of the relevant legal issues. Should you have any further questions, please do not hesitate to contact Apolat Legal for timely and in-depth support.
Related posts
- Legal basis and procedures for buying residential houses in Vietnam for foreigners
- Permanent residence card for foreigners in Vietnam: conditions and application procedures
- Foreigners purchasing resale condominium apartments in Vietnam
Disclaimers:
This article is for general information purposes only and is not intended to provide any legal advice for any particular case. The legal provisions referenced in the content are in effect at the time of publication but may have expired at the time you read the content. We therefore advise that you always consult a professional consultant before applying any content.
For issues related to the content or intellectual property rights of the article, please email cs@apolatlegal.vn.
Apolat Legal is a law firm in Vietnam with experience and capacity to provide consulting services related to Employment and contact our team of lawyers in Vietnam via email info@apolatlegal.com.
