The most common mistake of FDI employers new to hiring foreign experts: treating probation as a “buffer zone” that does not yet need a work permit. Vietnamese law has no such buffer zone.
Probation = work, legally
Under Article 24 of the 2019 Labor Code, probation is an arrangement in which the employee tries out the job for a period under the employer’s management and receives probation pay (at least 85% of the job’s salary, Article 26). All three elements of a labor relationship are present: actual work, management control, and wages. For foreign employees, Article 151 of the Labor Code makes a work permit the precondition for working in Vietnam — and Decree 219/2025/ND-CP contains no probation exception.
Consequences of “probation first, permit later”
- The employee is fined VND 15–25 million and deported (Clauses 3 and 6, Article 13 of Decree 283/2026/ND-CP) — deportation destroys the entire staffing plan;
- The company is fined VND 30–45 million for using a foreign worker without a permit (Clause 5, Article 13);
- The “underground” probation period is not legally protected: disputes over probation pay or a work accident in that period fall into a zone with no valid contract to resolve them.
The correct way: the permit covers the whole probation
The lawful sequence is simple: (1) complete the demand approval and obtain the work permit before the first working day, on the basis of the intended labor contract — with the probation period stated in that plan (per the Article 25 caps: up to 180 days for enterprise managers; up to 60 days for experts with college degrees or higher); (2) collect the permit; (3) sign the labor contract containing the probation clause and start work. The expert is protected and the employer compliant from day one.
What if the company wants to “evaluate first”?
The wish to assess ability before a long-term commitment is legitimate — but the tools must be lawful: in-depth interviews, skills tests performed outside an in-Vietnam working relationship (the candidate works remotely from abroad before entering to work), conditional offer letters, and a statutory probation clause inside the official contract. Any arrangement letting the candidate “try working at the Vietnam office for a few weeks first” is unpermitted work, whether it is called internship, observation or training.
Frequently Asked Questions
Can a foreign worker do probation before having a work permit?
No. Probation is a phase of the labor relationship (Articles 24–27 of the 2019 Labor Code): the employee actually works, is managed by the employer and receives probation salary. For a foreigner, the precondition for starting any working day in Vietnam — including the first probation day — is already holding a work permit (or being in an exemption case with a confirmation). Working while unpermitted is sanctioned as unpermitted work under Decree 283/2026/ND-CP.
What is the maximum probation period for a foreign expert?
The same as for Vietnamese staff, under Article 25 of the 2019 Labor Code: no more than 180 days for enterprise manager positions; no more than 60 days for jobs requiring a college degree or higher (most expert positions fall here); no more than 30 days for jobs requiring intermediate/vocational qualifications; no more than 6 working days for other jobs. Each employee may be put on probation only once for a given job.
Does the work permit cover the probation period?
Yes. A work permit is issued on one of the term bases in Decree 219/2025/ND-CP, including the term of the intended labor contract — and that intended contract can (and should) state the probation period inside it. The expert is thus lawfully covered continuously from the first probation day to the end of the contract term, with no legal “gap” between probation and official employment.
Contact us
FLAT Law Firm advises FDI companies and foreign employees on work permits, visas and temporary residence cards in Vietnam. Contact us for advice on your specific case.
This content is general information only and is not a substitute for legal advice on a specific case.
This article has been quality-reviewed by the FLAW AI Legal Council
