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Scenario
I am a foreigner who entered Vietnam with a tourist visa (DL) and later secured employment as a technical worker with a Vietnamese company. After signing an employment contract, the company promised to apply for a work permit for me. However, due to the lengthy processing time, my tourist visa expired. I was subsequently found to be overstaying in Vietnam and was fined 20 million VND and ordered to leave the country. Can I request the company to compensate me for the fine? Thank you.
Response
Thank you for contacting OTIS LAWYERS with your question. Our legal team has provided the following response for your case:
(1) Responsibility for Applying for a Work Permit for Foreign Workers
Based on the information provided, you do not fall under the category of individuals exempt from a work permit. Article 151 of the 2019 Labor Code requires foreign workers to have a valid work permit to work in Vietnam. Additionally, under Clause 2, Article 152, before hiring a foreign worker, an employer must justify the need for foreign labor and obtain written approval from a competent authority.
Article 4, Clause 1 of Decree 152/2020/ND-CP on foreign workers in Vietnam mandates that at least 30 days before employing foreign workers, employers must determine the need for foreign labor for each position that cannot be filled by Vietnamese workers and submit a justification report to the Ministry of Labor, Invalids and Social Affairs or the provincial People’s Committee where the foreign worker is to be employed.
Furthermore, under Clause 1, Article 11 of this Decree, if the foreign worker is employed as a technical laborer on a labor contract, the employer is responsible for submitting the work permit application. Thus, the Vietnamese company you work for is responsible for obtaining the work permit on your behalf.
(2) Responsibility of Foreigners Upon Expiry of a DL Visa
According to Article 30 of the Law on Entry, Exit, Transit, and Residence of Foreigners in Vietnam, foreigners must exit Vietnam upon expiry of their temporary residence period, or they may be subject to mandatory exit orders. Additionally, Article 44 of this law requires that foreign nationals in Vietnam must fulfill the purpose of their entry.
Since you entered Vietnam on a DL (tourist) visa, you were required to change the visa type to a work visa when you began employment. Although the company delayed the work permit process, overstaying on the expired tourist visa is your personal responsibility, as it violates the provisions under the Law on Entry, Exit, Transit, and Residence of Foreigners in Vietnam. Therefore, you are liable for your violation.
Furthermore, Article 18 of Decree 144/2021/ND-CP on administrative penalties in areas related to public security, social safety, and order stipulates that foreigners who overstay their temporary residence from 16 to 90 days may face fines from 500,000 VND to 20 million VND, depending on the length of the overstay. Overstaying may also result in additional penalties, including deportation.
For any questions or comments, please contact:
OTIS AND PARTNERS LAW FIRM
Office address: 2nd Floor, CT3 Building, Yen Hoa Park View Urban Area, No. 3 Vu Pham Ham Street, Yen Hoa Ward, Cau Giay District, Hanoi
Email: [email protected]
Hotline: (+84)987748111
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