China Visa FAQs (1): all you wanna know as follows

China Visa FAQs (1)

China is overhauling its immigration law regime. A new Exit-Entry Administration Law (EEAL), enacted by the National People’s Congress Standing Committee, became effective July 1, 2013. New State Council regulations became effective Sept. 1, 2013.

The  law and regulations cover, among other things, visas, entry, and exit;  stay, residence, and permanent residence; and investigation, penalties, and deportation.

VISAS, STAY CERTIFICATES, AND RESIDENCE PERMITS

1. What’s the difference?

Visas:

• Under the new law, PRC embassies, consulates, and other visa-issuing agencies outside of Mainland China (e.g., Chinese Visa Application Service Centers) are responsible for issuing visas (签证). (EEAL, art. 4). In narrow circumstances (e.g., emergencies) the public security bureau (PSB) at a port of entry (e.g., airport) can issue a single-entry visa valid for not more than 30 days (EEAL, art. 20).

• Also, the exit-entry office of the public security bureau (PSB) can issue visas to extend one’s stay (EEAL, art. 29; State Council regs, art. 12) or change the purpose of stay (State Council regs, art. 10) in Mainland China.

Residence Permits: J1, Q1, S1, X1, and Z visas are issued to individuals intending to enter China for purposes of taking up residence. These visas are valid for a single entry to China. Within 30 days of entry, these individuals must apply to a PSB exit-entry office for a residence permit (居留证件). (EEAL, art. 30; State Council regs, art. 9). Once issued, a residence permit can be used to enter China instead of a visa. (EEAL, art. 22).

Stay Certificates: Some categories of foreign nationals entering China may be granted stay certificates (停留证件) instead of visas or residence permits. For example:

• Foreign nationals whose governments have reciprocal visa waiver agreements with China (e.g., tourists from Singapore, Brunei, and Japan)

• Persons transiting through Beijing, Shanghai, Guangzhou, Chengdu, Chongqing, Shenyang, or Dalian within 72 hours.

• Persons who renounce PRC nationality.

• Persons whose residence permits have been cancelled who wish to remain in China for up to 30 additional days as a “grace period” to travel wrap up their affairs in China.

• Persons whose visas or residence permits are cancelled or confiscated and who are ordered to depart the country by a specified date will be given a stay certificate valid until that date. (EEAL, art. 33).

2. What are the new visa classifications?

The Ministry of Foreign Affairs has issued a bilingual Notice on Handling PRC Visa Applications (申请办理中华人民共和国签证须知) spelling out China’s new visa classifications. They are listed below.

3. What are the new types of residence permits?

Under the regulations, residence permits are divided into the following types:

1. Residence permits for employment (工作类居留证件), issued to foreigners who will work in China. A person entering on a Z (work) visa would apply for this type.

2. Residence permits for study (学习类居留证件), issued to foreigners who will study in China. A person entering on an X1 (student) visa would apply for this type.

3. Residence permits for journalists (记者类居留证件), issued to foreign journalists who reside in China on behalf of permanent offices of foreign news agencies. A person entering on a J1 (journalist) visa would apply for this type.

4. Residence permits for family reunion (团聚类居留证件), issued to persons seeking to reside in China with Chinese citizen or  permanent resident relatives, or who need to live in China for foster care. A person entering on a Q1 visa would apply for this type.

5. Residence permits for private affairs (私人事务类居留证件), issued to certain relatives of foreign nationals holding residence certificates for purposes of employment, study, etc. These permits 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.

4. 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 permit may be issued valid for 90 days to 5 years. (EEAL, art. 30). In contrast, a residence permit issued other than for employment 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 length of stay for a particular individual’s stay certificate, visa, or residence certificate. Local practices vary. According to the Beijing provisional procedures, for example:

5. What are the grounds of ineligibility?

The following are grounds for denying a visa, residence certificate, stay certificate, or entry to China (EEAL, arts. 21, 25; State Council regs., art 21):

a. The foreign national has infectious tuberculosis or other infectious diseases that might seriously endanger public health. (EEAL, art. 21). Further, the Exit-Entry Inspection and Quarantine Bureau prohibits entry of persons who suffer from serious mental illness. Implementing Rules of the PRC Health and Quarantine Law, State Council No. 574 (Apr. 24, 2010). The 2010 amendment to these Rules removed the prohibition on entry for persons with AIDS.

b. The foreign national practices fraud in the application process.

c. The foreign national is unable to guarantee that he or she can cover the costs for the period in China.

d. The foreign national is unable to submit relevant information requested by the visa-issuing office or exit-entry administration.

e. In the case of an applicant to the exit-entry administration, he or she is in violation of relevant laws and regulations. This could include, for example, a person who during the current stay has worked without authorization (see EEAL, art. 43), failed to report to the exit-entry administration a change in the purpose of his or her stay (see EEAL, art. 34), or overstayed.

f. The foreign national may engage in activities in China inconsistent with his or her visa classification.

g. The foreign national has been deported or expelled but not fulfilled the required number of years abroad before seeking readmission.

h. The foreign national might undermine China’s national security and interests, disturb social public order, or be engaged in other illegal criminal activities.

i. Other circumstances cause the visa-issuing agency or exit-entry administration to believe it would be inappropriate to issue the visa, residence certificate, or stay certificate.

j. In the case of a foreign national seeking entry to China, other laws or regulations prohibit entry.

6. Who needs a medical exam?

Visa applicants: 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). Under the new regulations, this is no longer a requirement. Now, a visa-issuing agency will require a medical exam only if the officer has particular concerns about the applicant’s health condition.

Employment license applicants: Rules require a health certificate as part of the application for an employment license. (1996 regs on the Employment of Foreigners, art. 11).

Residence permit applicants:

• The new State Council regulations require a health certificate for anybody applying for a residence permit valid for one year or more.

• The new regulations don’t adopt a provision in the draft regulations (art. 22) that would have exempted minors under age 16 from the medical exam. However, local rules may have the same result. For example, Beijing doesn’t require a medical exam from applicants under age 18.

• As in the past, the exam is valid for 6 months (State Council regs, art. 16), so it may be possible to use the same certificate as used for the employment license. The regulations don’t require a medical from applicants extending a residence permit, changing from one type of residence permit to another, or replacing a residence permit. (State Council regs, art. 17).

WORKING IN CHINA

7. When is a Z (work) visa required, as opposed to an M (business) visa?

A Z (work) visa is required if a foreign national has a labor relationship with a PRC work unit. In addition, a foreigner with a foreign labor contract and foreign source of remuneration will need a Z (work) visa if engaged in work-like activities for 3 months or more. According to a Labor Department order:

For foreigners working (工作) 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 (就业) 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.

It’s unclear whether the Labor Department order will be modified in light of the new law, but so far it remains in effect.

8. Is there any update on what qualifications are required for a Z (work) visa?

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 fairly vague rules lend themselves to varying local interpretations.

In Guangdong Province, 2011 rules require the provincial government to formulate and publish a list of occupations for foreign nationals’ employment, specifying encouraged and restricted occupations, in light of the economic and social development level and based on the supply and demand of human resources. (Interim Provisions of Guandgong Province on Administration of and Services to Aliens, art. 30).

The new Exit-Entry Administration Law is based on the Guangdong model. Various departments should cooperatively formulate and periodically adjust a guidance list regarding special need / shortage occupations. 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. It remains to be seen how the new law will be interpreted and enforced.

9. 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 (on more than the current ad-hoc basis), further rules will need to be issued–probably by the State Administration for Foreign Expert Affairs–to define their requirements and procedures.

10. 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 announced that employment license applicants will need to submit a “certificate of no criminal conviction” (also known as a police clearance letter) effective July 1. Beijing, Qingdao, and Hangzhou have joined other cities, such as Suzhou and Nanjing, which already had similar requirements in place. For more information, see Police Clearance Letters for Foreign Workers: Now Required in Beijing, Qingdao, Hangzhou Too.

UNAUTHORIZED EMPLOYMENT

11. 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 engages in “unauthorized employment” (非法就业), 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). On a related note, if a foreign entity uses a foreign national (or a PRC citizen) to establish a representative office or conduct business activities of a representative office without registration, the registration authority may order it to suspend activities and impose a penalty of RMB 50,000 to 200,000. (Administrative Regulations on the Registration of Resident Representative offices of Foreign Enterprises, art. 35).

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). A foreign national is responsible to pay the costs related to his or her own 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).

12. How is unauthorized employment defined?

The new law defines behavior that “shall” be deemed “unlawful employment” (非法就业):

• First, “work” (工作) in China without obtaining an employment license and residence permit for work is illegal. (EEAL, art. 43(1)).

• Second, it’s illegal to work in China beyond the scope of the work specified in the employment license (“出工作许可限定范围在中国境内工作的”). (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 specified in the employment license (工作许可证件) are restricted. (Draft State Council regs, art. 40). While the final regulations omit these specifics, they are probably implied. One ambiguity is the extent to which an employee working in one city can be assigned to work short-term in other cities.

• Third, it’s illegal for foreign students to do work that violates work-study rules or goes beyond the scope of the position or hours approved by the exit-entry administration. (EEAL, art. 43(3).) As background, 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 foreign national an “independent contractor” or a “freelancer” or an “intern” will not allow an employer to escape liability for unauthorized employment where the facts establish that there is a labor relationship. Similarly, a 1994 government notice warned against illegal employment disguised as “exchange” or “training.

Nor can foreign nationals escape liability for unauthorized employment by claiming they are self-employed in China. Chinese law recognizes something similar to self-employment, namely, the individual industrial and commercial enterprise (IICE or 工商个体户). A Chinese citizen may register an IICE. (General Principles of Civil Law, art. 26, adopted by the NPC and promulgated by the President on Apr. 12, 1986; Regulations on Individual Businesses, art. 2, adopted by the State Council on Mar. 30, 2011). Hong Hong and Macao residents who are Chinese citizens, as well as Taiwan residents, may also register an IICE. (Id., art. 27). However, foreign nationals do not have this right.

As explained above, a foreign national who enters into a labor relationship with a PRC work unit is “working” in China. Moreover, “work” takes place if a foreigner with a foreign labor contract and foreign source of remuneration is engaged in work-like activities for 3 months or more, according to the Labor Department order cited above.

13. “I’ve been offered a job in China. The employer says I should first to apply for an tourist or business visa to start work, then they will shift me to a work visa. Does that sound right?”

You can’t work for a China employer with a tourist or business visa. The statute is clear that work for a Chinese employer without a work-type residence permit is illegal. (EEAL, art. 43(1)). It’s a common scam for agencies/employers that are unable to secure such a permit to bring employees to China to work illegally with non-work visas. Further, without a work-type residence permit, you lack the legal protections afforded by a labor relationship, such as the right to use labor arbitration to seek unpaid wages.

Similarly, don’t come on the promise that after arrival the employer will seek authorization for you to work. As mentioned above, they can’t put you to work until you actually hold a work-type residence permit, and with narrow exceptions it’s not possible to change from a non-work visa to a work-type residence permit within China; instead, the applicant normally needs to seek a Z visa at a PRC consulate or other visa-issuing agency abroad.

Some employers will argue that the foreigner is not actually “working” so doesn’t need a work-type residence permit. As mentioned above, however, if the facts show that the foreign national’s activities constitute work, the absence of a written labor contract is not controlling. 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. Working in China without a work-type residence permit is engaging in high-risk behavior.

STUDENTS AND INTERNS

14. What work authorization and internship opportunities are available to foreign students with residence certificates for study?

Under State Council regulations, a person with a residence certificate for study who wants to take a part-time job or internship off campus should obtain approval from the school, then apply to the PSB Exit-Entry Administration for a notation to the residence certificate showing the part-time job or the location and period of internship off campus. (State Council regs, art. 22). Notice that short-term students with X2 visas do not have such opportunities.

The law delegates to the Ministry of Education the obligation to establish a framework for foreign students to obtain work authorization. (EEAL, art. 42.). To date, the national framework has not been published. But some local policies have been established. For example:

• Shanghai has issued interim rules that allow for off-campus practical training without pay (except for reimbursement of travel and meal expenses).

• Beijing’s Zhongguancun Science Park allows foreign students at Beijing universities, with the university’s agreement and recommendation letter, to apply to the PSB exit and entry authorities to add to their residence permits for study an “innovation” annotation to concurrently carry out innovative activities.

• Dalian’s High Tech Industrial Zone allows foreign students to engage in practical training with approval from the school, employer, and PSB.

Yet in many cities it’s not yet possible to apply for authorization for a part-time job or internship, except on an ad-hoc basis.

It’s illegal for foreign students to work without authorization or beyond the scope authorized. (EEAL, art. 43(3).)

In contrast, under former rules, “work-study” was allowed in accordance with the school’s regulations. (Rules on Foreign Student Enrollment in Institutions of Higher Education, promulgated Jan. 31, 2000, by the Ministries of Education, Foreign Affairs, and Public Security, art. 36).

15. “Which visa is appropriate to do an internship in China if I have no residence certificate for study?”

In the past, activities permissible with an F visa expressly included “internships lasting less than six months.” (2010 Implementing Rules, art. 4(4)). However, any reference to internships has been deleted from current regulations. Now, under the State Council regulations, art. 6:

• F visas are for noncommercial “exchanges, visits, inspections, etc.”

• M visas are “commerce or trade.”

The omission of any reference to internships has created  a legal ambiguity as to which visa, if any, is appropriate for an internship. A clear statement of policy should be provided by the government to resolve the ambiguity.

One interpretation is that by deleting reference to internships the State Council intended to make that activity impermissible with an M or F visa.

Consistent with this interpretation, a representative of the Ministry of Foreign Affairs (MOFA) told the American Chamber of Commerce-China orally on Nov. 25, 2013, that the Ministry intended to prohibit internships with F or M visas because in the past so-called “internships” were actually employment in disguise for persons who were ineligible for work visas because, for example, they lacked the degree and experience needed for a work visa or they directly competed with recent Chinese graduates for jobs in occupations where there was no labor market shortage. A MOFA representative has also told our firm that they have issued internal written instructions to consulates that M and F visas are not to be issued for purposes of internships.

This interpretation is bolstered by the regulations on internships by X1 students holding residence permits, who are required to get approval by their schools and the PSB Exit-Entry Administration before engaging in an off-campus internships, and who are considered to have engaged in unauthorized employment if they engage in any work beyond the scope authorized. (EEAL, art. 43(3); State Council regs, art. 22). These rules seem to classify an internship as “work” requiring permission to work from the PSB.

A contrary interpretation of the ambiguous regulations is that although the M and F regulations don’t specifically mention internships, they are nonetheless permissible.  Buttressing this argument are the 1996 Rules for the Administration of Employment of Foreign Nationals, art. 8 (not specifically repealed by the new State Council regulations), stating that an internship is not work. However, given the weakness of this argument, employers, interns, and third-party referrers (e.g., headhunters and agencies that arrange internships) all should be aware of the legal risks of these arrangements.

Interestingly, in Beijing’s Zhongguancun Science Park, students from overseas universities are allowed to have short-term internships with S2 visas. S2 visas authorize entry for vaguely worded “private affairs.” (State Council regs, art. 6(11)). In particular, according to the Zhongguancun rules, companies that invite foreign higher education students to participate in practical training may file with Beijing public security bureau exit and entry authorities to enable such students to apply with port visa authorities for short-term private affairs visas (annotated “practical training”) in order to enter the country to carry out practical training activities. This local rules opens the door to the possibility that S2 visas may be appropriate for visas in other scenarios as well.

The argument that an internship is permissible may turn on the specific facts. For example, if you undertake an internship for a company abroad, you may have a good argument that you qualify for an M (business) visa to China on an M visa for commercial or trade purposes, where your wages are paid by a foreign company. Or you may be able to come to China on an F visa to volunteer without pay in a community service program.

This topic will remain unsettled until a clear statement of policy is provided by immigration authorities.

Source: http://lawandborder.com

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