Context & Official Legal Basis
You have found the right candidate for a role in Vietnam. They are a foreign national, and before you commit to a full labor contract, you want a trial period to confirm the fit. This is standard practice in most countries. But in Vietnam, the interaction between the Labor Code and the specific regulations for foreign workers creates a compliance trap that catches many employers off guard. The core issue is simple but critical: a foreign employee cannot legally start a probationary period before their work permit is issued. If you sign a standalone probationary contract and the employee begins work before the permit is in hand, you are both in violation of Vietnamese labor law.
The legal framework rests on the following instruments:
- Labor Code 2019 (Law No. 45/2019/QH14) — Articles 24 through 27 establish the general rules for probation. Article 24 permits probation to be recorded directly in the labor contract or in a separate probationary contract. Article 25 sets the maximum probation duration by job type. Article 26 requires probationary wages to be at least 85% of the regular salary for the role. Article 27 governs the outcome of the probation period and the obligation to sign a labor contract if the probation is satisfactory.
- Decree No. 219/2025/ND-CP — Effective 7 August 2025, this decree governs foreign workers in Vietnam. Article 2.1(a) defines "performing a labor contract" as one of the forms of work for a foreign employee. Article 22.4 requires that after a foreign employee is granted a work permit, the employer and employee must sign a written labor contract under Vietnamese labor law before the expected start date.
- Decree No. 283/2026/ND-CP — Effective 10 September 2026, this decree sets administrative penalties for labor violations. Article 16.2 imposes fines for conducting probation beyond the agreed time, paying probationary wages below 85%, or failing to sign a labor contract when a probation period meets the requirements.
There is a further complication that many employers misunderstand. Under Vietnamese law, there is no specific provision allowing a separate, standalone probationary contract for foreign employees in the way the Labor Code allows for domestic employees. The prevailing legal view is that for foreign workers, the probation content must be recorded within the standard labor contract, or the probationary period must begin only after the work permit is issued and the labor contract is signed. Attempting to use a separate probationary contract before the work permit is issued creates a legal gap where the foreign employee is working without authorization.
Required Documents Checklist for a Compliant Probationary Arrangement
Because the probationary period for a foreign employee is legally tied to the work permit and the labor contract, the documents you need are those required for the work permit application, plus the labor contract itself. Below is the checklist based on Decree 219/2025/ND-CP and the Labor Code.
- Valid work permit — issued by the provincial Department of Labor, Invalids and Social Affairs (DOLISA) or the Department of Home Affairs. The foreign employee cannot legally begin probation before this document is in hand.
- Written labor contract — signed by both the employer and the foreign employee. Under Article 22.4 of Decree 219/2025/ND-CP, this must be concluded before the expected start date of work. The probation content should be included in this contract, either in a dedicated clause or as an annex.
- Probation clause or addendum — if you choose to document the probation separately, it should be an annex to the labor contract, not a standalone contract that predates the work permit. The probation clause must specify the probation duration and the probationary salary.
- Health certificate — issued by a qualified medical facility, within 12 months of submission, as part of the work permit dossier.
- Criminal record certificate — issued within 6 months of submission, as part of the work permit dossier.
- Passport copy — certified copy of the foreign employee's valid passport.
- Two color photographs — 4 cm × 6 cm, white background, for the work permit application.
- Documents proving qualifications — university degree or equivalent, and relevant work experience certificates.
Maximum Probation Duration by Job Type (Article 25 Breakdown)
Under Article 25 of the Labor Code 2019, the probationary period is negotiated based on the nature and complexity of the work, but it can only be applied once for each job and must not exceed the following limits:
| Job Type | Maximum Probation Duration | Legal Basis |
|---|---|---|
| Management of an enterprise (as defined in the Law on Enterprises) | 180 days | Article 25.1 |
| Work requiring a technical qualification of technical college diploma or higher | 60 days | Article 25.2 |
| Work requiring a technical qualification of secondary certificate, or specialized worker | 30 days | Article 25.3 |
| Other work | 6 working days | Article 25.4 |
For foreign employees, the job position classification under Decree 219/2025/ND-CP (manager, executive director, expert, or technical worker) will typically align with one of these categories. A foreign General Director or CEO falls under the management category and may have a probation period of up to 180 days. A foreign expert with a university degree falls under the 60-day category. Probation can only be applied once per job. Requiring an employee to undergo probation more than once for the same job is a violation.
Probationary Salary Rules and the 85% Minimum
Under Article 26 of the Labor Code 2019, the probationary salary is negotiated by the parties but must be at least 85% of the salary for the job. This is a mandatory floor. There are two important nuances for foreign employees:
- The 85% floor applies to the job's actual salary, not the regional minimum wage. If the regular salary for the position is VND 30,000,000 per month, the probationary salary must be at least VND 25,500,000 per month. The 85% calculation is based on the salary for that specific job, not on the regional minimum wage.
- Probationary salary may be lower than the regional minimum wage in certain cases. Because the 85% rule is tied to the job's salary, if the job's salary is close to the regional minimum wage, the 85% probationary salary may fall below the regional minimum. This is legally permissible as long as the 85% floor is met. However, for foreign employees, the salary stated in the work permit application and the labor contract must always be at or above the applicable regional minimum wage for the worksite.
Copyable Labor Contract Clause for Probationary Period
Because a standalone probationary contract is not advisable for foreign employees, the probation terms should be integrated into the standard labor contract. Below is a copyable clause you can adapt. Replace all bracketed placeholders with your actual information.
ARTICLE [X] — PROBATIONARY PERIODThe Employee shall undergo a probationary period of [Number] days, commencing on [Start Date] and ending on [End Date].During the probationary period, the Employee shall be entitled to a probationary salary of [Amount] VND per month, which is not less than 85% of the salary for the position as stated in Article [Y] of this Contract.The probationary period shall be used to assess the Employee's suitability for the position of [Job Title].Upon satisfactory completion of the probationary period, the Employee shall continue employment under the terms of this Contract, and the salary shall be adjusted to [Regular Salary Amount] VND per month effective [Effective Date].If the Employee's performance during the probationary period is unsatisfactory, the Employer shall notify the Employee in writing of the result of the probation. In such case, this Contract shall be terminated in accordance with Article 27 of the Labor Code 2019.During the probationary period, either party may terminate this Contract by giving [Number] working days' written notice to the other party.The probationary period shall be applied only once for the position of [Job Title]. [Optional: The parties agree that the probationary content is recorded in this Contract and no separate probationary contract shall be executed.]Official Submission Step-by-Step Procedure
Follow these steps in order. The sequence is critical for foreign employees — reversing the order creates legal exposure for both parties.
- Step 1 — Obtain the work permit. The employer submits the work permit application to the provincial DOLISA or Department of Home Affairs using Form No. 03 under Decree 219/2025/ND-CP. The work permit must be issued before the foreign employee begins any work, including probation. The processing time is 10 working days from receipt of a valid dossier.
- Step 2 — Sign the written labor contract. After the work permit is issued, the employer and the foreign employee sign a written labor contract that complies with Vietnamese labor law. The probation content is recorded in this contract or in an annex. This must be done before the expected start date of work.
- Step 3 — Register the labor contract if required. In certain provinces, the labor contract with a foreign employee may need to be registered or reported to the labor authority. Verify the local requirement with DOLISA.
- Step 4 — Commence the probationary period. The employee begins work under the probation terms stated in the labor contract. The employer must ensure the probationary salary is at least 85% of the regular salary for the position.
- Step 5 — Notify the result of the probation. Under Article 27 of the Labor Code 2019, at the end of the probationary period, the employer must notify the employee of the probation result. If the probation is satisfactory, the employer continues the existing labor contract. If the probation is unsatisfactory, the employer terminates the labor contract.
- Step 6 — Sign a new labor contract if the probation was under a separate arrangement. If the probation was documented in a separate annex (not integrated into the main labor contract), and the probation is satisfactory, the employer must sign a new labor contract with the employee. Failure to do so is a violation under Article 16.2(d) of Decree 283/2026/ND-CP.
Submission location: The work permit application is submitted to the provincial Department of Labor, Invalids and Social Affairs (DOLISA) or the Department of Home Affairs where the foreign employee will work. The labor contract is not submitted to a government authority for approval in most provinces, but it must be available for inspection.
Fees: The state fee for work permit issuance typically ranges from VND 400,000 to VND 600,000 per permit, depending on the province. There is no separate fee for the probationary period itself. Because fee schedules vary by province, verify the exact amount with the local receiving office before payment.
Common Mistakes & Rejection Warnings
- Signing a probationary contract before the work permit is issued. The most serious and most common mistake. A foreign employee who begins work — even under a probationary label — without a work permit is working illegally. The employer faces fines, and the employee may face deportation. The work permit must be issued first.
- Using a standalone probationary contract for a foreign employee. Under Vietnamese law, there is no specific provision allowing a separate probationary contract for foreign employees. The safer practice is to record the probation content in the standard labor contract or an annex to it. A standalone probationary contract executed before the work permit creates a legal gap.
- Paying probationary salary below 85%. Article 26 of the Labor Code 2019 sets a mandatory floor of 85% of the salary for the job. Article 16.2(c) of Decree 283/2026/ND-CP imposes a fine of VND 2,000,000 to VND 5,000,000 for paying probationary salary lower than agreed or lower than 85%.
- Exceeding the maximum probation duration. Probation cannot exceed 180 days for management roles, 60 days for technical college diploma work, 30 days for secondary certificate work, or 6 working days for other work. Article 16.2(b) of Decree 283/2026/ND-CP imposes fines for conducting probation beyond the agreed time or exceeding the statutory limits.
- Applying probation more than once for the same job. Article 25 of the Labor Code 2019 states that probation applies uniquely one time for one job. Requiring an employee to undergo probation again for the same position is a violation.
- Failing to sign a labor contract when probation is satisfactory. Article 16.2(d) of Decree 283/2026/ND-CP imposes a fine of VND 2,000,000 to VND 5,000,000 for failing to sign a labor contract when a probationary period meets the requirements. For organizations, the penalty is doubled.
- Not notifying the employee of the probation result. Article 27 of the Labor Code 2019 requires the employer to notify the employee of the probation result. If the probation is satisfactory, the employer must continue the existing contract or sign a new one. Silent continuation without formal notification can create ambiguity if a dispute arises.
Frequently Asked Questions
Can a foreign employee in Vietnam sign a probationary contract before receiving a work permit?
No. Under Article 2.1(a) of Decree 219/2025/ND-CP, a foreign employee's form of work includes "performing a labor contract," and Article 22.4 requires the employer to sign a written labor contract only after the work permit is issued. A foreign employee who begins work — even under a probationary label — before the work permit is issued is working illegally.
What is the maximum probation period for a foreign employee in Vietnam?
Under Article 25 of the Labor Code 2019, the maximum probation period is 180 days for enterprise management roles, 60 days for work requiring a technical college diploma or higher, 30 days for work requiring a secondary certificate or specialized worker status, and 6 working days for other work. Probation can only be applied once per job.
What is the minimum salary during the probation period in Vietnam?
Under Article 26 of the Labor Code 2019, the probationary salary is agreed upon by the parties but must be at least 85% of the salary for that job. The 85% calculation is based on the regular salary for the specific position, not on the regional minimum wage. For foreign employees, the salary stated in the labor contract must also be at or above the applicable regional minimum wage.
Is a separate probationary contract allowed for foreign employees in Vietnam?
Vietnamese law does not specifically provide for a standalone probationary contract for foreign employees. The safer and more compliant approach is to record the probation content within the standard labor contract or in an annex to it. A standalone probationary contract executed before the work permit creates legal risk for both the employer and the employee.
What are the penalties for probation violations in Vietnam?
Under Decree 283/2026/ND-CP, which took effect on 10 September 2026, employers face fines of VND 2,000,000 to VND 5,000,000 for: requiring probation more than once for one job, conducting probation beyond the agreed time or statutory limits, paying probationary salary below 85%, or failing to sign a labor contract when probation meets the requirements. For organizations, the penalty is doubled.