The term of labor contract for foreign workers who are exempted from work permits for marrying a Vie

The term of labor contract for foreign workers who are exempted from work permits for marrying a Vietnamese
Posted date: 10/03/2022

Legal situation: 

My Company has a foreign worker getting married to a Vietnamese citizen. He is  now exempted from the work permit for the marriage. When we recruited him, he presented an indefinite work permit exemption Certificate, so my Company signed an indefinite-term labor contract with this foreign worker. 

I would like to ask if my Company violates the provisions of the law. Sincerely thank you. 

Answer: 

Thank you for trusting and sending your questions to FDVN. Regarding your consulting request, FDVN would like to send you some references as follows:

First, cases of work permit exemption for foreign workers: 

Pursuant to Article 154 of Labor Code 2019, guided by Article 7 of Decree No. 152/2020/ND-CP stipulating on foreign workers working in Vietnam, recruitment and management of Vietnamese workers working for foreign employers in Vietnam, a foreign employee is not required to have the work permit if he/she:

1. Is the owner or capital contributor of a limited liability company with a capital contribution value conformable with regulations of the Government.

2. He/she is the Chairperson or a member of the Board of Directors of a joint-stock company with a capital contribution value of at least 3 billion dongs. 

3. Is the manager of a representative office, project, or the person in charge of the operation of an international organization or a foreign non-governmental organization in Vietnam.

4. Enters Vietnam for a period of fewer than 03 months to do marketing of a service.

5. Enters Vietnam for a period of fewer than 03 months to resolve complicated technical or technological issues...

6. Is a foreign lawyer who has been granted a lawyer’s practicing certificate in Vietnam in accordance with the Law on Lawyers.

7. In one of the cases specified in an international treaty to which the Socialist Republic of Vietnam is a signatory.

8. Gets married to a Vietnamese citizen and wishes to reside in Vietnam.

Therefore, if a foreign worker gets married to a Vietnamese and lives in the Vietnamese territory, he/she shall be exempted from the work permit. 

Second, the obligations of units, organizations recruiting foreign workers who are exempted from the work permit:

1. Certify foreign workers who are exempted from work permits:

Pursuant to Article 8, Decree No. 152/2020/ND-CP, “The employer shall request the Ministry of Labor, War Invalids and Social Affairs or the Department of Labor, War Invalids and Social Affairs of the province where the foreign worker is expected to work to certify that such foreign worker is eligible for exemption from a work permit at least 10 days working days before he/she starts to work.”

Therefore, before recruiting a foreign worker who is eligible for exemption from a work permit, the enterprise must request the Department of Labor, War Invalids and Social Affairs of the province where the foreign worker is expected to work to certify that such foreign worker is exempt from the work permit at least 10 working days before he/she starts to work.

2. Sign the labor contract with foreign workers:

Pursuant to Clause 2, Article 13 of Labor Code 2019, “Before recruiting an employee, the employer shall enter into a labor contract with such employee.” Thus, the enterprises need to sign the labor contract with foreign workers before he/she starts to work. 

Clause 1, Article 20 of this Code, the Labor Contract must be concluded in one of the following types:

 

“a) An indefinite-term labor contract is a contract in which the two parties neither fix the term nor the time of termination of the contract; 

b) A fixed-term labor contract is a contract in which the two parties fix the term of the contract for a duration of up to 36 months from the date of its conclusion.”

Clause 2 Article 151 of Labor Code 2019 stipulates: “2. The duration of a foreign worker’s labor contract must not exceed that of the work permit.” In this case, foreign workers who are exempted from the work permit are not constrained within this period, therefore, depending on the agreements between parties and the actual situation of the enterprise’s labor recruitment demand, Enterprises can establish a labor contract with a definite or indefinite term. 

3. Report on the employment of foreign workers: 

Pursuant to Article 6, Decree No. 152/2020/ND-CP, the employer of foreign workers shall send a first-half-year report and an annual report on the employment of foreign workers before July 5 and January 5 of the following year. Thus, the Company should pay attention to the period of making the report as prescribed in this Article in accordance with the law.

Above is FDVN LAW FIRM’s opinion for your consulting requests based on studying the relevant legal provisions. Hopefully, FDVN’s advice would be helpful to you. 

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