Reliant on the Law - Who keeps your work permit card?

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As a foreign worker in China one of the most important documents for your legal status is your work permit. Technically it is a People’s Republic of China Foreigner's Work Permit, but since through the magic of deixis, we are all aware that we are talking about situations involving non-Chinese citizens (i.e. “Foreigners”) working in China, and there are no work permits held by Chinese for use in China, I will simply call the People’s Republic of China Foreigner's Work Permit the work permit or WP for short. Sometimes I will write WP card to emphasize the actual physical card as opposed to the status of having been granted the permissions and privileges that the card documents.

It is important to understand that the card is proof of having a status. That status is also documented elsewhere, namely in the WP approval document (准予行政许可决定书) and in the Foreign Expert Bureau (FEB) online Service System for Foreigners Working in China (https://fwp.safea.gov.cn/). This becomes clear when we realize that if the WP card is lost, only the card itself needs be replaced, and you would not need to go through the whole WP application process again just to replace the card. If the card was sufficient to create the status associated with it, then loss of the card would mean loss of the status, but that is not the case.

A common misconception about the WP is that it is a Foreign Expert Certificate (FEC). As of 1 April 2017, the Permit for Foreigners' Entry and Employment issued by the Ministry of Human Resources and Social Security and the Permit for Foreign Experts to Work in China, issued by the FEB, we both superseded by the People’s Republic of China Foreigner's Work Permit (Letter on the Opinions). So those who still call their WPs FECs are not just old school, but are truly behind the times.

The WP card is then proof of a status, that of being able to legally work in China. But you can have that status without having the card. Before we move on to the main question about who can keep the card, it merits taking a little more time to explain the status. The WP is tied to a single employer who is indicated on the WP (RAEFC 7, 23). Furthermore, without a WP there is no legal labor relationship (Interpretation 4.14) even if you have signed a labor contract, and if you work without having a WP, one that accurately reflects your employer and job, then you are working illegally (EEAL 41, 43; RAEFC 8). So the status of having a WP is clearly important. But what about having the card itself? Is that important? And who has what rights to it?

Presentation of the WP card can be required in many instances where you need to prove you have a legal labor relationship. These can include, but are not limited to, filing a labor arbitration case, filing a labor inspection complaint, and checking on social insurance enrollment. Having the WP card is also often useful when applying for a new WP. Often times an image of the front of the WP card will be enough and the actual WP card is not required, but that is up to the discretion of whatever government office or other entity you are dealing with. Thus it is very important to at least have a clear image of the front of the WP card, that is the side that has your picture and the QR code. It is also ideal that this image at least be clear enough to scan the QR code as much of the information about the present legal employer is only available by scanning the QR code on the WP card. This information includes the name and address of the legal employer, your legal job title, and the dates of WP validity, among other items. Many employers submit fake and/or adulterated contracts to the FEB and thus if you cannot check this information your employer can easily have committed fraud, even potentially putting you in a position where you are working illegally, without you even being aware of it.

Does this mean that you should have the WP card itself? And are you justified in asking for it? Let’s take the second question first and settle the relatively simple matter of theory before we get to the messier issues of practice. According to article 9 of the Labor Contract Law of The People’s Republic of China (LCL), the short answer is that you are entitled to have the WP card at least when you are working in the position that is listed on the WP card. LCL 9 reads “Where a worker is hired, the employer may not detain the identity card or other certificates thereof, nor may it require a guaranty or collect property from the worker under any other reason.” While the the prohibition on an employer withholding a [Chinese national] identity card clearly does not apply directly to any foreign workers in China, who by definition do not have Chinese national identity cards, the closest analogue of the the Chinese national identity card would be your passport, to which LCL 9 clearly applies.

So then the question of who has a right to keep the card rides on what counts as “other certificates.” Here we see that theory and practice are not so separate as they sometimes seems. What counts as your certificate is what the relevant authorities in any transaction decide is your certificate. There is a clear case for the WP card being your certificate as, like that prototypical certificate, the national identity card, it is issued by a government agency and bears your name and a photograph of you. This structural resemblance along with the functional similarity to the national identity card, i.e. both being proof of a status that entitles one to certain rights (and obligations) under law, means that in practice most labor supervision inspections brigades will see the WP card as covered by LCL 9, and the corresponding penalty provisions in LCL 84. However, existing administrative rules, namely RAEFC 20, require the prompt return of the WP to the issuing agency at the end of the labor relationship/contract. These rules were originally written in 1996, back in the days of FECs, and many FEB now do not actually ask for or want the WP card returned. However, the existence of this rule means the employer has a legal basis for claiming the WP card to return to the FEB after the end of the labor relationship.

As a purely practical matter, how should one go about getting the WP card?  If your employer operates under the principles of “legitimacy, justice, equality, free will, unanimity through consultation and good faith” found in LCL 3, then you can simple ask your employer for the WP card. If, however, you feel your employer operates under the something closer the common Chinese saying 能骗就骗 - “if you can cheat’m, then cheat’m,” - an earnest request likely won’t work. Thus you can take a page from David Letterman’s old "Brush with Greatness" sketch and use a “writer’s embellishment” in your request.

This is a strategy I call ask plus [embellishment]. The idea is that if the employer is reluctant to give you the WP card or even an image of the WP card that is because the employer is not operating in good faith as LCL and the whole system of contract employment based on LCL requires. Instead, the employer is likely keeping the card as a means of actual or potential control over you and to increase or maintain the relations of information inequality that help them control and exploit, or cheat, you. Therefore if you ask to use the card itself or have an image of the card based on some [embellished] need that will not make the employer suspicious, it is more likely the employer will let you use the card or give you the clear image of the card that you need. Good embellishments move the focus away from the employment situation in China, where the employer has both an informational advantage and anxiety about what you might do. They focus outward on some need from your home country that seems far away and innocuous, and which the employer knows nothing about. Thus an example might be that for some reason you need to show the image of the WP card to tax authorities in your country, and that is why you absolutely must have a clear image of the WP card.

Of course, you should only use the ask plus strategy when you believe a good faith based strategy of earnestly asking would be likely to fail. The problem is that if you earnestly ask at first, and only thereby discover that your employer does not operate in good faith, then having made the earnest ask itself decreases the probability for success of the ask plus, as the initial earnest ask may have increased the employer’s level of suspicion. So you need to carefully consider whether it is better to ask earnestly first or to use ask plus first. Either way, if whichever strategy you first try fails, then your next step is to try the other strategy. Finally, if both strategies have failed then you can move on to making a labor inspection complaint to request the actual card. Keep in mind this last strategy will likely sour relations with the employer, but if both the earnest ask and ask plus strategies have failed, then relations with the employer cannot be too sweet, or even savory, to begin with.

The principles discussed above for the WP card or card image broadly apply to other documents, which you may have handed over to the employer during the WP application process, though there are some differences. If your authenticated degree, TEFL/TESOL certificate, work experience letters, or other documents are being held by the employer, getting an image back will NOT be sufficient. You must get the original back. In these cases you should not hesitate to make a labor inspection complaint immediately after asking fails because the fact of the employer holding these documents is a sufficient indication of the employer’s lack of good faith. This is also true of the passport, but with that document you should also immediately report the fact that your employer is holding it to your embassy or consulate, and ideally through them to the local police. The passport is technically property of the issuing government and they have an interest in making sure it does not go astray.

It does not matter what excuse for holding your documents an employer gives. Even if the employer has paid for a TEFL course, that is not a justification for holding the TEFL certificate. It can be part of a legal breach penalty for training expenses, but most contracts in the education sector are not that well written, and employers often resort to illegal methods such as withholding documents in an effort to recoup expenses.

The best policy with all of your documents and certificates is to keep them in your custody. Only give them to government officials, and even then only allow those officials to keep the documents or remove them from your sight if they give you a receipt for the documents. To apply for the WP, documents first need to be sent online and then shown briefly in the FEB office. You can give your employer scans of the documents for the first portion of the process, and you can accompany your employer to the FEB office for the in person document check. That way you not only keep custody of your documents but also learn where the FEB office is.

When applying for a Residence Permit for Work (RPw) or Stay Permit your passport will need to be left at the Exit Entry Administration (EEA). But the EEA will give you a receipt for your passport which you need when picking up the passport. Keep that receipt. Go pick up the passport yourself and pay for the RPw yourself, it is usually RMB 400 per year. Get a receipt for the payment if you need your employer to reimburse you. Having that paper trail will help head off any exorbitant claims that your employer may make for “visa fees.” Also, you are legally obligated to carry your passport at all times, and when your passport is at the EEA you are only allowed to stay legally in China on the strength of the receipt for the passport that the EEA has issued you (RAEEF 18). That legal requirement is a clear reason why you should have the original of the passport receipt from the EEA, no embellishment needed.

One other document related strategic suggestion is that when you sign a labor contract with a company, ask for an image or copy of their business license. This document clearly is not one of your certificates, but if the company is acting in good faith then they have no need to hide that business license from someone they are about to establish an employment relationship with. Though the business license is all in Chinese, you can translate it and thus know basic information about the company that employs you, including the types of business they are legally allowed to engage in.

Returning to our original issue of the WP card, things are a bit more difficult as a policy of good preventative document custody hygiene alone, as described above, will not be sufficient. This is because the WP card will likely be given by the FEB directly to the employer along with the WP approval document. But since these all need to be taken to the EEA to apply for the RPw, if your good document custody hygiene with your passport ensures you are there at the EEA during the application process, you should have a good opportunity to demand the WP card or at least get a clear picture of it. Unlike the passport, the WP card is only shown to the EEA and not left there for processing. Thus when the WP card is produced to show the EEA officer you can directly ask that the card or at least a clear image of it be given to you. Be polite and firm, but do not be hesitant to make these demands of the employer at the counter in front of the EEA officer. You might even print out LCL 9 in the original Chinese to show to the employer during the process. Rely on the law and protect your rights.

References 

The State Council Review and Reform Office "Letter on the Opinions on Integrating Work Permits for Foreigners to Come to China"

国务院审改办《关于整合外国人来华工作许可事项意见的函》

http://www.beijing.gov.cn/zhengce/zhengcefagui/qtwj/201803/t20180316_776498.html 

RAEFC Rules for the Administration of Employment of Foreigners in China

(note this translation does not incorporate revisions of 2017 thus numbering is off after 13)

http://english.www.gov.cn/services/work_in_china/2018/08/02/content_281476245886934.htm  

外国人在中国就业管理规定

http://www.mohrss.gov.cn/SYrlzyhshbzb/zcfg/flfg/gz/201704/t20170413_269433.html  

Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Labor Disputes (4)

最高人民法院关于 审理劳动争议案件适用法律若干问题的解释（四）

http://www.court.gov.cn/zixun-xiangqing-5064.html 

EEAL Exit Entry Administration Law of the People’s Republic of China 

http://english.www.gov.cn/archive/laws_regulations/2014/09/22/content_281474988553532.htm 

中华人民共和国出境入境管理法

http://www.gov.cn/flfg/2012-06/30/content_2174944.htm  

LCL Labor Contract Law of the People’s Republic of China

http://english.www.gov.cn/archive/laws_regulations/2014/08/23/content_281474983042501.htm  

中华人民共和国劳动合同法

http://www.gov.cn/flfg/2007-06/29/content_669394.htm

RAEEF Regulations of the People’s Republic of China on Administration of the Entry and Exit of Foreigners

http://english.www.gov.cn/archive/laws_regulations/2014/09/22/content_281474988553545.htm

中华人民共和国外国人入境出境管理条例

http://www.gov.cn/zwgk/2013-07/22/content_2452453.htm

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