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Q&A on China’s New Exit-Entry Administration Law and Regulations [Copy link] 中文

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Post time 2013-8-5 13:23:05 |Display all floors
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1. What are the new visa classifications?The below table compares selected visa classifications under the current regime with the new visa classifications:
Current Visa ClassificationsNew Visa Classifications effective September 1 (State Council regs, arts.   6-7).
F visa: Business visa,  issued to persons invited to give lectures or for official visits; for purposes of business, scientific, technological, or cultural exchanges; or for short-term studies or internships lasting less than six months.F visa: will be issued to persons engaged in exchanges, visits, inspections, etc. The draft State Council regulations would have instead issued F visas  to persons invited to China on a noncommercial exchange or visit for scientific-technological, education, cultural exchanges, health or sports activities. See also M visas below.
J visa: Journalist visa, issued to foreign journalists.J1/J2 visas: J-1 visas will be issued to resident foreign correspondents of   foreign news organizations resident in China; J-2 visas will be issued to  foreign correspondents who make short trips to China to gather and report news.
L visa: Tourist visa, issued to persons entering China for tourism, to visit relatives, or for other private purposes.L visa: for persons coming to China for tourism. The requirement of the draft State Council regulations that round-airlines tickets and hotel reservations be provided in every case has been dropped. (See Draft State Council regs at art. 9(6)). Nevertheless, visa agencies may require such evidence on a case-by-case basis. See also Q and S visas for those visiting relatives.
M visa: will be issued  to persons who come for business or commercial activities.
Q1/Q2 visas: Q1 visas will be issued to the relatives of Chinese citizens applying to enter and reside in China for purposes of family reunion, to the relatives of persons who have qualified for permanent residence in China, and to persons applying to enter and reside in China for purposes such as adoption. Q2 visas will be issued to the relatives of Chinese citizens and of persons qualified for permanent residence in China who are applying to enter and stay for a short period to visit relatives.
R visa: Will be issued to foreign high-level talents that China needs and to specialized talents that are urgently needed due to short supply. (Note that the final regulations don’t adopt separate R1 and R2 classifications as proposed in the draft).
S1/S2 visas: S1 visas will be issued for purposes of entry and long-term family visits with foreigners residing in China for work, study, etc. by a spouse,  parents, children under age 18, parents-in-law, and other persons who need to reside in China for private purposes; S2 visas will be issued to persons applying for entry and short-term visits with foreigners staying or residing in China for work, study, etc. by relatives and other persons who need to stay in China for private purposes.
X visa: Student visa,  issued to students and others coming to China for training or internship for  a period of six months or more.X1/X2 visas: X1 visas will be issued to persons applying for long-term study in China; X2 visas will be issued to persons applying for short-term study in China. Part-time work and internships off campus may be authorized. See new S1/S2   visas for accompanying family members.
Z visa: work visa, issued to foreign workers and their accompanying family members.Z visa: will be issued to persons applying to work in China. The final regulations don’t adopt the separate classifications for long-term Z1 and short-term Z2 visas proposed in the draft regulations. See new S1/S2 visas for accompanying family members.

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2. What are the new types of residence permits?Under the regulations, residence certificates are divided into the following types:
1. Residence certificates for employment, issued to foreigners who will work in China. A person entering on a Z (work) or R (talent) visa would apply for this type.
2. Residence certificates for study, issued to foreigners who will study in China. A person entering on an X1 (student) visa would apply for this type.
3. Residence certificates for journalists, issued to foreign journalists who reside in China on behalf of permanent offices of foreign news agencies. A person entering on a J-1 (journalist) visa would apply for this type.
4. Residence certificates for family reunion, issued to foreigners who need to reside in China for purposes of family reunion with relatives who are Chinese citizens or  permanent residents, or who need to live in China because of adoption. A person entering on a Q1 visa would apply for this type.
5. Residence certificate for private affairs, issued to the spouse, parents, children under 18 years old, and parents-in-law of foreigners residing in China for purposes of work, study, etc., in order to allow such relatives to stay long-term. These certificates are also issued to foreigners who need to reside in China to deal with other private affairs. A person entering on an S1 visa would apply for this type.
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3. What is the duration of stay for the new visa classifications and residence permits?Stay certificates and “short-term” visas will be issued for a maximum stay of 180 days. (EEAL, art. 34; State Council regs, art. 36(4)).
An employment-type residence certificate may be issued valid for 90 days to 5 years. (EEAL, art. 30). In contrast, a non-employment-type residence certificate may be issued valid for 180 days to five years. (EEAL, art. 30).
The law and State Council regulations don’t specify how, within those ranges, to decide the stay for a particular individual on a stay certificate, visa, or residence certificate.
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4. What are the penalties for unauthorized employment?The National People’s Congress’ overriding policy in enacting the law was to more harshly punish foreigners who illegally enter, live, or work in China. For a foreigner who works illegally, a fine of 5000 to 20,000 RMB will be imposed. In serious circumstances, detention of five to 15 days may also be imposed. (EEAL, art. 80). Prior rules allowed fines not exceeding 1000 RMB but not detention. (Implementing Rules for the Foreigner Entry-Exit Administration Law, promulgated by the Ministries of Public Security and Foreign Affairs, April 24, 2010 art. 44.) Persons or companies that illegally employ foreigners may  be fined 10,000 RMB  per foreigner, not to exceed a total of 100,000 RMB. Any illegal gains may be confiscated. (EEAL, art. 80). Prior rules allowed for fines not exceeding 50,000 RMB. (2010 Implementing Rules, art. 44).
Persons or companies who introduce jobs to ineligible foreigners may be fined 5,000 RMB per job, not to exceed a total of 50,000 RMB for a person or 100,000 RMB for a company. Any illegal gains may be confiscated. (EEAL, art. 80).
Foreigners who have violated the immigration law may be given a deadline to depart voluntarily, if appropriate, or deported. A person who has been deported is not allowed to reenter for one to five, or 10 years in the case of “severe” violations. (EEAL, arts. 62 and 81). Under the State Council’s rules, a foreigner is responsible to pay the costs related to his or her deportation. If the foreigner is unable to afford the expenses and engaged in illegal employment, the work unit or individual employing the alien is responsible. (State Council regs, art. 32).
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5. How is unauthorized employment defined?The new law defines behavior that “shall” be deemed unlawful employment:

    • First, “work in China without obtaining an employment license or work-type residence permit” is illegal. (EEAL, art. 43(1))
    • Second, “work in China beyond the scope prescribed in the work permit” is illegal. (EEAL, art. 43(2)). The draft State Council regulations clarified that this includes working at a different work unit or outside of the geographic area to which one’s work permit is restricted. (Draft State Council regs, art. 40). But the final regulations omitted any definition of unauthorized employment. Perhaps the draft provision was deleted because it made it difficult for employers to comply for employees who work short-term at remote or multiple locations.
    • Third, it’s illegal for foreign students to work without authorization or beyond the scope authorized. (EEAL, art. 43(3).) A student with a residence certificate who needs to take a part-time job or internship off campus shall obtain approval from the school, then apply to the exit-entry administration authorities for a notation to the residence certificate showing the  part-time job or the location and period of internship off campus. (EEAL, art. 42). The law delegates to the Ministry of Education the obligation to establish a framework for foreign students to obtain work authorization. (EEAL, art. 42.) Presumably, that framework will cover any rules related to on-campus employment.
An underlying issue is how “work” should be defined. Under the draft State Council regulations, a labor relationship can be found to exist without a written labor contract, so long as there is a “de facto labor relationship with a work unit.” (Art. 41). The final State Council Regulations omit this provision. But the Labor Contract Law makes the same point. (Arts. 11, 14, 82). So, for example, merely labeling the foreigner an “independent contractor” or a “freelancer” will not be a cure where the facts establish that there is a labor relationship.
In addition, a foreigner with a foreign labor contract and foreign source of remuneration will count as “working” in China if engaged in work-like activities for 3 months or more. According to a Labor Department order:
For foreigners working in China, if the labor contract is concluded with a domestic work unit (in its legal place), regardless of how long the work in China will be, it will be considered employment in China. If the labor contract is concluded with a legal entity abroad, the source of compensation is abroad, and the work in China is for three months or more (not including foreign engineers and technicians and experts implementing a technology transfer agreement), it is considered employment in China, in which case an employment license should be applied for at the Labor Department’s license-issuing authority according to the Regulations, so a work visa should be applied for, as well as a work permit and residence permit.
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6. “I’ve been offered a job as a teacher by an agency. The agency says to apply for an F visa. Can I work with an F visa? Can I change in China from an F to a Z visa?”You can’t work in China with an F visa, or for that matter with the new M visa. The statute is clear that “work in China without obtaining an employment license or work-type residence permit” is illegal. (EEAL, art. 43(1)). It’s a common scam for agencies/employers that are unable to secure Z visas to bring employees to China to work illegally with non-work visas.
Some agencies/employers will argue that the foreigner is not actually “working” so doesn’t need a work visa. As  mentioned above, however, if the facts show that there is a labor relationship between the parties, then there is one even without a written labor contract. (Labor Contract Law, arts. 11, 14, 82). For example, merely labeling the foreigner an “independent contractor” or a “freelancer” will not be a cure where the facts establish that there is a labor relationship. So, teaching or doing other work in China without a work-type residence permit is engaging in high-risk behavior.
The statute and State Council regulations are silent on whether a person who enters with an F or M visa may change within China to a work-type residence permit. Local policies vary, but often the answer is no, in which case you’d need to leave China to apply for a Z visa abroad. So if you are risk averse, insist that the proposed employer sponsor you at the outset for a Z visa.
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7. What work authorization and internship opportunities are available to foreign students with residence certificates for study?It’s illegal for foreign students to work without authorization or beyond the scope authorized. (EEAL, art. 43(3).) A person with a residence certificate for study who needs to take a part-time job or internship off campus should obtain approval from the school, then apply to the Exit-Entry Administration for a notation to the residence certificate showing the part-time job or the location and period of internship off campus. (EEAL, art. 42). The law delegates to the Ministry of Education the obligation to establish a framework for foreign students to obtain work authorization. (EEAL, art. 42.) Presumably, that framework will cover any rules related to on-campus employment as well.
8. “Which visa is appropriate to do an internship in China if I have no residence certificate for study?”Persons who have no residence certificate for study (for example, persons whose study was outside of China) may find their options for China internships limited. In the past, activities permissible with an F visa expressly included “internships lasting less than six months.” (2010 Implementing Rules, art. 4(4)). Internship is not a specifically authorized activity under the new descriptions of F and M visas, and it’s not clear whether internship is impliedly within their scope:
  • “F visas will be issued to persons engaged in exchanges, visits, inspections, etc.”
  • “M visas will be issued to persons who come for business or commercial activities.”
(State Council regs, art. 6).
Even if the activities of an internship could be shoehorned into an F or M visa, another issue is pay. Such visas do not authorize “work” in China (EEAL, art. 43(1)), which is how the government would likely see a paid internship, especially by an “intern” who is not a full-time student.
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