Question:
Dear Lawyer, our company specializes in the distribution of automobiles and construction machinery and employs many foreign workers in Vietnam. Regarding the modification of work permits, we are currently awaiting the results of changing the legal representative in our Enterprise Registration Records.
1. Our employees will no longer work in Vietnam starting from October 1, 2024. Can we return their work permits to the Hanoi Department of Labor in December 2024?
2. Regarding the application for work permits for foreign employees (position: Manager, title: Director):
- According to the Notification of Job Position Approval for the position of Director issued by the Hanoi Department of Labor, the employment form is under a labor contract. However, we wish to register to continue this position under the Internal Transfer form. Do we need to apply for a new Notification of Job Position Approval, or can we continue using the old one?
- If changes are required, what is the process, and how long will it take?
- Will there be any additional State-imposed costs?
Response:
SB Law provides the following responses to your inquiries:
1. First, Returning Work Permits
In cases where a work permit becomes invalid due to the termination of a labor contract, the employer must collect the foreign employee’s work permit and return it to the Ministry of Labor, Invalids, and Social Affairs (MOLISA) or the Department of Labor, Invalids, and Social Affairs (DOLISA) that issued the permit within 15 days of the permit’s expiration, accompanied by a written explanation for the revocation if applicable (pursuant to Clause 1, Article 21 and Clause 1, Article 20 of Decree 152/2020/ND-CP on Revocation of Work Permits).
If the company fails to report changes in foreign labor as required by law, it may be subject to administrative penalties ranging from VND 1,000,000 to VND 3,000,000 (as stipulated in Point c, Clause 2, Article 8 of Decree 12/2022/ND-CP).
Therefore, if the employee's labor contract ended on October 1, 2024, but the company only returns the work permit in December 2024, this would constitute a violation of legal regulations and may result in an administrative fine.
Applying for Work Permits for Foreign Employees (Position: Manager, Title: Director)
If the company intends to change the employment form from a labor contract to an internal transfer, a new Job Position Approval must be obtained. The old approval cannot be reused for this change.
To apply for a work permit for foreign employees, the following procedures must be completed (based on Article 4 and Article 9 of Decree 152/2020/ND-CP, as amended by Decree 70/2023/ND-CP):
Step 1: Notify recruitment of Vietnamese employees before employing foreign workers. This includes posting job announcements on the Ministry of Labor, Invalids, and Social Affairs’ online portal (Department of Employment) or the Employment Service Center’s portal for at least 15 working days before applying for approval to use foreign workers.
Step 2: Obtain approval for using foreign workers. Within 15–20 working days from the date of submission of valid documents to the competent authority, the company will receive the approval for the foreign worker's job position.
Step 3: Apply for the work permit. Within 10–15 working days from the date of submission of a valid application, the company will receive the work permit.
The entire process of applying for a work permit is expected to take approximately 1.5 to 2 months.
Cost Implications:
There are no additional State-imposed costs for applying for new Job Position Approval. However, additional costs may arise from legal consultancy and service fees provided by SB Law.
Conclusion:
If your company wishes to apply for a work permit for a foreign employee with the title of Director under the Internal Transfer employment form, it must apply for new Job Position Approval. The old approval under the Labor Contract employment form cannot be reused.
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