Author: Rearwindow

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 13:26:33 |Display all floors
9. Is there any update on what qualifications are required for a Z work visa?Under the law, various departments should cooperatively formulate and periodically adjust a guidance list regarding foreigners’ work in China. The list should be based on economic and social development needs, as well as the supply of and demand for human resources. (Art. 42). No such list has been published yet. This is not entirely new. Existing rules require that Z visas be reserved for positions for which the employer has a “special need” and that is currently a “shortage” occupation in China. (1996 regs on the Employment of Foreigners, art. 6). These rules are fairly vague and unevenly enforced. It remains to be seen how the new law will be interpreted and enforced.
10. Is there any update on R visas for foreign talent?As mentioned above, R visas will be issued to foreign high-level talents that China needs and to specialized talents that are urgently needed due to short supply. (State Council regs, arts. 6(9), 7(9)).
The draft State Council regulations would have required that a provincial level department or higher make the determination that a foreigner qualifies (art. 9(9)), but that requirement was deleted from the final regulations.
Before R visas can be issued, further rules will need to be issued–probably by the National Foreign Expert Bureau–to define their requirements and procedures.
In the meantime, foreign experts will continue to apply for Z work visas under current rules.
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Post time 2013-8-5 13:27:29 |Display all floors
11. Who needs to go for an interview at the Chinese Embassy or other visa issuing agency abroad?The law states generally that an interview may be required as part of a visa application at a Chinese embassy or other visa issuing agency abroad. (EEAL, art. 18). The regulations specify that an interview will be required: (1) if applying entry and residence. This includes applicants for a J1, Q1, R, S1, X1, or Z visa. (2) if the applicant’s identity and the purpose of entry need to be verified; (3) if the applicant has been refused entry previously, or has been required to depart within in a particular period of time; or (4) if there are other circumstances making it necessary to hold an interview. This represents an additional travel cost.
12. Who needs a criminal background check?The new law and State Council regulations don’t specifically require a criminal background check. In fact, while the draft State Council regulations required submission of a “certificate of no criminal conviction” at the visa application stage (art. 8), that was dropped in the final regulations (art. 7). Still, agencies have the power to create rules requiring a criminal background check. For example, the Beijing Municipal Bureau of Human Resources and Social Security has announced that  employment license applicants will need to submit a “certificate of no criminal conviction” (also known as a police clearance letter) from their country of residence, effective July 1. Beijing joins other cities, such as Suzhou and Nanjing, which already have similar requirements in place.
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Post time 2013-8-5 13:28:18 |Display all floors
13. Who needs a medical exam?Under prior rules, foreigners coming to China for residence one year or longer should, when applying for visas at the Chinese embassy or other visa issuing agency abroad, get a medical exam. (2010 Implementing Rules, art. 6). The new regulations are silent on this point, but presumably the requirement will continue. Rules also require a health certificate as part of the application for an employment license. (1996 regs on the Employment of Foreigners, art. 11). The prior rules also required a health certificate when applying for a residence permit. (2010 Implementing Rules, art. 17(3)). Although the draft State Council regulations would have slightly modified the requirement by exempting minors under 16 (art. 22), the new regulations drop that exemption and require the certificate for anybody applying for a residence permit valid for one year or more. As in the past, the exam is valid for 6 months (Art. 16), so it may be possible to use the same exam for the visa application, employment license, and residence permit.
14. What’s the maximum length of stay that may be given on an F or M visa extension? Is there a maximum number of times that the visa may be extended?The law and State Council regulations are silent. Local policies vary.
15. Under what circumstances will a change from a short-term visa to a residence permit be permitted within China?For example, is it possible to change from an F, L, or M visa to a residence permit? The statute and State Council regulations are silent on this. Local policies vary.
16. How early must an application for a visa, stay certificate, or residence permit be filed with the Exit-Entry Administration?Under the draft State Council regulations, a person applying in China to the Exit-Entry Administration to extend a visa would be required to do so 7 days before the stay period shown on the prior visa expired. (Art. 12). Similarly, to extend one’s residence period, a person would need to apply 30 days before the prior residence certificate expired. (Art 24). Thankfully, the final regulations eliminate these time limits, leaving in place just the requirement to file before the prior document expires.
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Post time 2013-8-5 13:29:03 |Display all floors
17. How long will adjudication of a visa, stay certificate, or residence permit application by the Exit-Entry Administration take? Is travel possible while the application is pending?If an application for a visa extension, replacement, reissuance, or stay certificate is complete and appears to be approvable, the Exit-Entry Administration will issue an acceptance notice with a validity period of not more than 7 work days, and will adjudicate the application within that period. (EEAL, art. 29; State Council regs, arts. 13, 36). Similarly, if an application for an issuance, extension, replacement, or reissuance of a residence certificate is complete and appears to be approvable, the Exit-Entry Administration will issue an acceptance notice with a validity period no more than 15 work days, and adjudicate the application within that period. (EEAL, art. 30; State Council regs, art. 18, 36). The Exit-Entry Administration will retain an applicant’s passport while the application is pending. The acceptance notice will serve as evidence that a person is legally in China. (State Council regs, arts. 13, 18). However, the State Council has not implemented proposals to issue acceptance notices that are valid for purposes such as domestic travel on trains and airplanes as well as for banking transactions. Nor has the Exit-Entry Administration announced procedures for expediting an application in the event of a true emergency. This will cause some inconvenience to both employers and foreigners.
18. Will visa runs to Hong Kong or a third country be possible?The statute and State Council regulations are silent on this.
19. Should foreigners expect their immigration status will be checked in connection with financial, educational, medical, and telecommunications transactions?An important purpose of the new law was to “strengthen communication and coordination in the control of exit and entry affairs,” including establishing “a uniform exit and entry control information platform to share information among administrative departments” and improving the collection of biometric data. (EEAL arts. 4-5, 7). The draft State Council regulations specified that policy carrying out official business may verify visa and residence status (art. 34) and that employers may verify a foreigner’s identity through the Exit-Entry Administration (art. 43). These requirements were inexplicably dropped in the final regulations. However, the final regulations state that “if a finance, education, medical, or telecommunication work unit, etc. in the course of business needs to verify a foreigner’s status, it may apply to the Exit-Entry Administration” (art. 27). It remains to be seen how thoroughly these checks will be carried out and how accurate the results will be.
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Post time 2013-8-5 13:30:41 |Display all floors
20. What are the details on the government’s collection of foreigners’ biometric data?Under the law, applicants for residence certificates “shall” provide biometric data such as fingerprints. (EEAL, art. 30. See also State Council regs, art. 16.). Further, the State Council may approve the Ministries of Public Security and Foreign Affairs’ collection of biometric data from persons leaving or entering the country. (EEAL, art. 7). So far, the State Council hasn’t publicly announced such approval.
21. How will the new law impact permanent residence applications?The law specifies that foreigners who have ”made outstanding contributions to China’s economic and social development or meet other permanent residence conditions in China” may be granted permanent resident status. (Art. 47). This does not appear to be a significant change (despite China Daily’s claim that the “threshold” has been “lowered”) because under rules approved by the State Council in 2003 persons who have “made great and outstanding contributions and are specially needed by China” are among the categories who may already be granted permanent resident status. The new law also calls on the Ministries of Public Security and Foreign Affairs, as well as other departments under the State Council, to define rules for application and adjudication of permanent residence applications. (Art. 47). The State Council’s 2003 rules have not yet been updated. Interestingly, Xinhua News Agency quotes Yang Huanning, vice minister of public  security, as saying that the new law will “increase the eligibility quota for green cards.” But no quota is mentioned in either the State Council’s 2003 rules or the new law. Yang may have inadvertently leaked information about confidential internal rules.
22. Will visas and residence certificates issued before the regulations’ September 1 effective date be honored for entry and stay afterwards?Yes. The general presumption under Chinese law is that regulations do not retroactively void previously granted benefits. (Law on Legislation, art. 84).
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