Can your employer cancel your visa without your passport?

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The clear answer here is no. But maybe not for the reason you think.

The main reason your employer cannot cancel your visa without your passport is that if you have an employer, then you don’t have a visa. For the vast majority of foreigners working in China, one needs to have both a Work Permit (WP) and Residence Permit for Work (RPw) to work legally. If you really did just enter China on a Z visa, then you have 30 days after entry, during which time you need to get a WP and, based on that, an RPw. So the question of cancelling the visa is moot, if things do not work out with that employer then you would need either to get the WP cancelled and and get a stay permit to stay in China, or simply to leave within 30 days after entry.

So the real question is not about visa cancellation but rather about cancelling the RPw. Here again there is a simple yet specious initial answer:  Can your employer cancel your RPw without your passport? No. The reason the employer cannot cancel the RPw, however, is that only the Exit Entry Administration (EEA) can. And the EEA can cancel your RPw (or a visa, or a stay permit for that matter too) without having possession of the passport in which the RP, etc. in question is affixed. According to Regulations of the People's Republic of China on Administration of the Entry and Exit of Foreigners (RAEEF) Article 34, when the EEA declares “a visa, stay permit or residence permit null and void in accordance with law, it may do so on the spot or through a public notice.” The public notice used for this is usually posted on the EEA’s website and aside from the name of the permit holder, is usually all in Chinese. This process of cancellation through a posted notice is colloquially often called 宣废 (xuān fèi), and while the employer cannot independently use the xuanfei process to cancel the RPw, the employer can request the EEA do so.

In using the xuanfei process, the EEA has discretion. There are a variety of situations in which the EEA is supposed to cancel the RPw (or visa or stay permit), such as fraudulent application or use, criminal activities, public health risks, and deportation (Exit Entry Administration Law [EEAL] 21, 31, 67; RAEEF 34, 35). But another reason why the RP can be cancelled is failure to report to the EEA within the prescribed time limit when the purpose of residence has changed (RAEEF 34.3). That time limit is 10 days (EEAL 33), and resignation from a job is one way in which the purpose of an RPw can change. But here is where issues of local practice come up.

In some locations the EEA is willing to quickly move through the xuanfei process on the word of the employer alone, but in many places the EEA will contact the permit holder and extend an offer to submit evidence before deciding whether or not to cancel the RPw. And, in many locations the EEA will not cancel the RPw when there is an ongoing labor dispute. But whether or not avoiding the RPw cancellation is even a goal depends on the permit holder’s plans and practices around new WP and RPw applications in any location where the permit holder might want to work next. Suffice it to say, it is even more important that usual to maintain an up to date police registration if one is, or anticipates being, involved in a labor dispute, so that the EEA has correct contact information.

References

(1) RAEEF

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

http://cs.mfa.gov.cn/wgrlh/lhqz/lhqzjjs/t1120987.shtml

中华人民共和国外国人入境出境管理条例

http://www.gov.cn/flfg/2013-07/22/content_2477673.htm

Article 34

In one of the following circumstances, the visa, stay permit or residence permit held by a foreigner shall be declared null and void by the issuing authority:

(1) His or her visa, stay permit or residence permit is lost, damaged, destroyed, stolen or robbed;

(2) The time limit for his or her exit, repatriation or deportation from China has been decided, and his or her visa, stay permit or residence permit has not been confiscated or cancelled;

(3) The original purpose of residence has been changed, but he or she fails to report to the exit and entry administration authority of the public security organ within the prescribed time limit and fails to do so even after the said organ has given a public notice thereon; or

(4) Circumstances in which a visa or residence permit shall not be issued as prescribed by the provisions of Article 21 or Article 31 of the Exit and Entry Administration Law.

Where the issuing authority is to declare a visa, stay permit or residence permit null and void in accordance with law, it may do so on the spot or through a public notice.

第三十四条　

外国人有下列情形之一的，其所持签证、停留居留证件由签发机关宣布作废：

    （一）签证、停留居留证件损毁、遗失、被盗抢的；

    （二）被决定限期出境、遣送出境、驱逐出境，其所持签证、停留居留证件未被收缴或者注销的；

    （三）原居留事由变更，未在规定期限内向公安机关出入境管理机构申报，经公安机关公告后仍未申报的；

    （四）有出境入境管理法第二十一条、第三十一条规定的不予签发签证、居留证件情形的。

    签发机关对签证、停留居留证件依法宣布作废的，可以当场宣布作废或者公告宣布作废。

Article 35

In one of the following circumstances, the visa, stay permit or residence permit held by a foreigner shall be cancelled or confiscated by a public security organ:

(1) The issuing authority declares it null and void, or it is being used fraudulently by someone else;

(2) It is forged, altered, or obtained by fraud or other illegal means; or

(3) The holder has been decided on a time for exit, repatriation or deportation from China.

The authority that makes a decision on cancellation or confiscation of a visa, stay permit or residence permit shall, in a timely manner, notify the issuing authority.

第三十五条　

外国人所持签证、停留居留证件有下列情形之一的，由公安机关注销或者收缴：

    （一）被签发机关宣布作废或者被他人冒用的；

    （二）通过伪造、变造、骗取或者其他方式非法获取的；

    （三）持有人被决定限期出境、遣送出境、驱逐出境的。

    作出注销或者收缴决定的机关应当及时通知签发机关。

(2) EEAL

(Exit and 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

Article 21

Under any of the following circumstances, visas shall not be issued to foreigners:

(1) Was deported, or was repatriated upon decision, and the No-Entry-into-China period has not expired;

(2) Is suffering from serious mental disorders, infectious tuberculosis or other infectious diseases that may severely jeopardize the public health;

(3) May endanger China’s national security or interests, or disrupt social and public order, or engage in other illegal or criminal activities;

(4) Resort to fraudulent acts in visa application or cannot guarantee expected expenditures during their stay in China;

(5) Fail to submit relevant information required by the visa-issuing authorities; or

(6) Other circumstances in which visa authorities consider a visa should not be issued.

The visa-issuing authorities are not required to give reasons for refusing the issuance of a visa.

 第二十一条 

外国人有下列情形之一的，不予签发签证：

    （一）被处驱逐出境或者被决定遣送出境，未满不准入境规定年限的；

    （二）患有严重精神障碍、传染性肺结核病或者有可能对公共卫生造成重大危害的其他传染病的；

    （三）可能危害中国国家安全和利益、破坏社会公共秩序或者从事其他违法犯罪活动的；

    （四）在申请签证过程中弄虚作假或者不能保障在中国境内期间所需费用的；

    （五）不能提交签证机关要求提交的相关材料的；

    （六）签证机关认为不宜签发签证的其他情形。

    对不予签发签证的，签证机关可以不说明理由。

Article 31

Under any of the following circumstances, a foreigner’s residence permit shall not be issued:

(1) The visa held does not belong to the type for which a foreigner’s residence permit should be issued;

(2) Resorts to fraudulent acts in application;

(3) Fails to provide relevant supporting materials in accordance with relevant regulations;

(4) Is not eligible to reside in China because of violation of relevant Chinese laws or administrative regulations; or

(5) Other circumstances in which the issuing authority considers a foreigner’s residence permit should not be issued.

Foreigners with expertise and foreign investors who conform to relevant State regulations or foreigners who need to change their status from stay to residence for humanitarian or other reasons, may undergo the formalities for obtaining foreigner’s residence permits upon approval by the exit/entry administrations of public security organs under local people’s governments at or above the city with districts.

第三十一条 

外国人有下列情形之一的，不予签发外国人居留证件：

    （一）所持签证类别属于不应办理外国人居留证件的；

    （二）在申请过程中弄虚作假的；

    （三）不能按照规定提供相关证明材料的；

    （四）违反中国有关法律、行政法规，不适合在中国境内居留的；

    （五）签发机关认为不宜签发外国人居留证件的其他情形。

    符合国家规定的专门人才、投资者或者出于人道等原因确需由停留变更为居留的外国人，经设区的市级以上地方人民政府公安机关出入境管理机构批准可以办理外国人居留证件。

Article 33 

The registered items of a foreign residence permit shall include name, sex, date of birth, reason for residence and duration of residence of the holder, date and place of issuance, passport number or other international travel documents number.

Where the registered item in a foreigner’s residence permit has changed, the holder shall, within 10 days from the date of change, apply to the exit/entry administration of public security organ under the local people’s government at or above the county level in the place of residence for going through the formalities for alteration.

第三十三条 

外国人居留证件的登记项目包括：持有人姓名、性别、出生日期、居留事由、居留期限，签发日期、地点，护照或者其他国际旅行证件号码等。

外国人居留证件登记事项发生变更的，持证件人应当自登记事项发生变更之日起十日内向居留地县级以上地方人民政府公安机关出入境管理机构申请办理变更。

Article 67

In such cases that the exit/entry documents such as visas or foreigners’ stay or residence permits are damaged, lost or stolen, or that after the issuance of such documents, the holders are found not eligible for being issued such documents, the issuing authorities shall declare the aforesaid documents void.

Exit/entry documents which are forged, altered, obtained by fraudulent means or are declared void by issuing authorities shall be invalid.

Public security organs may cancel or confiscate the exit/entry documents prescribed in the preceding paragraph or used fraudulently by persons other than the specified holders.

第六十七条 

签证、外国人停留居留证件等出境入境证件发生损毁、遗失、被盗抢或者签发后发现持证人不符合签发条件等情形的，由签发机关宣布该出境入境证件作废。

伪造、变造、骗取或者被证件签发机关宣布作废的出境入境证件无效。

公安机关可以对前款规定的或被他人冒用的出境入境证件予以注销或者收缴。

Reliant Services

Reliant Legal Consulting Ltd. provides solutions for labor disputes, work permit problems, and residence permit, visa, and stay permit issues. Contact us for more information:

WeChat ID:  Reliant-CN 

E-mail: [e-mail]

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