A work permit (“WP”) is a compulsory document for a foreign employee to work in Vietnam, and the WP is only valid for a specific period. If the employer wants to continue entering a labor contract with the foreign employee before the term of the WP expires, they must promptly extend the WP extension so that the foreign employee can continue working in Vietnam. So, is it the employer’s privilege to extend the WP?1. What is the work permit extension?

The WP extension is the extension of the term of an expired WP, allowing the foreign employee to continue working legally in Vietnam in accordance with the correct position, title, and employer in the WP that is about to expire.

The new term of the extended WP will be equal to the previous WP’s duration, but it will not exceed 02 years. The WP extension can only be archived once. As a result, when the extended WP expires, the employer must apply for the new WP so that their foreign employee continues working in Vietnam.

2. Conditions for extension of WP

To be eligible for the WP extension, the foreign employee must meet the following requirements:

1. The issued WP is valid for at least 5 days but not more than 45 days;
2. Foreign employee must be approved by the competent authority in accordance with an approval on demand of employing the foreign employee;
3. Having documents proving that the foreign employee is still working for the employer according to the contents of the issued WP.

If the above conditions are met, the foreign employee will be granted a WP extension to continue working in Vietnam.

3. Is it the employer’s privilege to extend the WP?

According to regulations, the employer is responsible for determining and applying for the approval on demand of employing the foreign employee for each job assignment at least 30 days before the expected date of employment.

For the employee working in Vietnam under the labor contract, after the foreign employee is granted the WP extension, the employer and the foreign employee must sign a written labor contract before the expected date of continuing to work for the employer. Besides, the employer must send the signed labor contract to the competent authority that has extended such license upon request.

From there, if the employer wants to continue using the foreign employee, they must be responsible for renewing the WP. This cannot be considered a privilege but rather the employer’s responsibility, because both the employer and employee are equal in signing the labor contract, and the employer must extend the WP before signing a new labor contract. The employer’s right in this case is to be able to choose whether to continue performing the labor contract with the employee or to terminate the labor contract on the expiration date of the labor contract.

Therefore, this is not an employer’s privilege, but rather a requirement that the employer must meet if they want to continue employing the foreign employee in Vietnam. If the foreign employee works without the WP or if the WP has expired, both the employee and the employer will be administratively sanctioned, and the labor contract between the two parties will be null and void.

To summarize, foreign employees must have a WP and renew it before the expiration date if they want to work legally in Vietnam. Employers are responsible for completing procedures for extending WPs for foreign employees. As a result, enterprises should pay attention to this issue to avoid legal risks when employing foreign employees.

Should you have any questions about the above contents, please revert to BLawyers Vietnam.

Date: 26 September 2022

Writer: Linh Nguyen