I am an entrepreneur in Vietnam. For personal reasons, my foreign employees have terminated their labor contracts ahead of schedule. However, their temporary residence cards remain valid and related to their exit from Vietnam. Is it okay for my enterprise to let them use their valid temporary residence cards to return home and later revoke and return them to competent agencies?
According to the Ordinance on Foreigners’ Entry into, Exit from and Residence in Vietnam, foreigners who temporarily reside for one year or more will be granted temporary residence cards by the competent immigration management agency of the Ministry of Public Security. Temporary residence cards will be valid for between one year and three years, and their holders will be exempted from obtaining visas upon their entry and exit during the term of validity of these cards.
Under the Ministry of Public Security and Ministry of Foreign Affairs’ Joint Circular No. 04/2002/TTLT-BCA-BNG dated January 29, 2002, guiding Government Decree No. 21/2001/ND-CP dated May 28, 2001, detailing the Ordinance on Foreigners’ Entry into, Exit from and Residence in Vietnam, temporary residence cards will be granted for foreigners who are:
- Members of overseas representative missions and their accompanying relatives and servants.
- Foreigners working with the Supreme People’s Procuracy, Supreme People’s Court, ministries, ministerial-level agencies, government-attached agencies, provincial-level People’s Committees, and central bodies of mass organizations.
- Foreigners working for licensed investment projects.
- Foreigners working for Vietnamese enterprises.
- Foreigners on payrolls of representative offices or branches of economic, cultural or other professional organizations of foreign countries; and Vietnam-based non-governmental organizations.
- Foreigners temporarily residing in Vietnam for other purposes.
Foreigners may carry out procedures with immigration management agencies via agencies, organizations and individuals that invite and guarantee them. After obtaining a temporary residence card, a foreigner must conduct activities for the purposes and programs for which he has applied for the card. In case he terminates the labor contract with his agency or enterprise while his visa and temporary residence card remains valid, his agency or enterprise has to work with immigration management agencies to return his temporary residence card and cancel his visa.
Under Government Decree No. 21/2001/ND-CP dated May 28, 2001, detailing the Ordinance on Foreigners’ Entry into, Exit from and Residence in Vietnam, agencies, organizations and individuals that invite foreigners to Vietnam have the responsibility to ensure the entry purposes, by:
- Registering with functional bodies planned activities of the invitees before their entry;
- Managing activities of the invitees, ensuring their compliance with the registered programs; and,
- Carrying out the procedures for conducting activities of the invitees in Vietnam in accordance with law.
Based on the above provisions, an enterprise that clearly identifies the termination of the labor contract of a foreigner ahead of schedule must request him to return his temporary residence card, work with the immigration management agency to revoke and invalidate the card, and request an immigration management agency to grant an exit visa to the foreigner.
In your case, the solution of your enterprise has contravened Vietnamese law.
Vietnamese law also has provisions to protect interests of enterprises employing foreigners, preventing cases where foreigners stop working for an enterprise and use their temporary residence cards guaranteed by such enterprise to work for another enterprise or stay in Vietnam to commit law-breaking acts. Specifically:
- In case a foreigner holds a visa or temporary residence card that remains valid but unilaterally terminates his labor contract, his employer must send an official dispatch to the Immigration Management Office of the concerned provincial-level Police Department to invalidate the visa or temporary residence card.
- In case a foreigner holds a temporary residence card that remains valid but requests the termination of his labor contract, or does not wish to have his labor contract extended upon its expiration, his employer must work with the Immigration Management Office of the Police Department of the province or city where the employer is based to return the temporary residence card, revoke the old visa and carry out procedures for grant of a new visa for the exit of the foreigner.- (VLLF)