Change to visa regulations is not far away - 1 June - so I thought I would start feeding in updates:
An overview:http://www.sidley.com/Impact-of-Chinas-New-Exit-Entry-Control-Law-on-Expatriate-Employees-and-Their-Employers-07-26-2012/JULY 26, 2012
Impact of China’s New Exit-Entry Control Law on Expatriate Employees and Their Employers
China Update
On June 30, 2012, China formally enacted the new Exit-Entry Administration Law (the “New Law”). China’s existing exit and entry control laws1 (the “Existing Laws”) were enacted in the late 1980s and have not since been meaningfully amended to reflect China’s modern day immigration issues.
The New Law, once effective, will repeal and replace the Existing Laws in their entirety. At a first glance, the New Law appears to be a consolidation of the Existing Laws governing exit and entry respectively. However, there are several new or amended measures of note, which are discussed in more detail in this edition of China update. The New Law will not come into effect until July 1, 2013, but expatriate employees and their P.R.C.-based employers should be mindful of the new rule changes to better manage expatriate employment requirements and issues.
Collection of Biometric Data
In order to streamline the collection of data among the various administrative departments of the Chinese government, including for example, the public security departments and the foreign affairs departments, Article 30 of the New Law for the first time requires that as part of the application process for residence permits, expatriates shall provide their fingerprints and “other biometric data” to the Public Security Bureau (“PSB”). There is some apparent vagueness as to what “other biometric data” means. Presumably, this could extend to collection of other physical biometric data, such as retinal scans, or behavioral biometric data, such as voice or handwriting samples. Furthermore, the new law indicates that, as circumstances arise which may warrant the collection of biometric data from persons that are not necessarily on extended stays in China (be they business travelers, tourists or students), the Ministry of Public Security or the Ministry of Foreign Affairs, may, at their discretion enact additional laws in this area, subject to final approval by the State Council.
Restrictions on Entries and Exits
In reaction to the fact that a large number of foreigners have managed to live and illegally work in China by entering on tourist or business visas2, Article 25 of the New Law provides that a foreigner who “might” engage in activities inconsistent with the category of his/her entry visa will be denied entry visas for China. This provision allows a large margin of discretion to the issuing authorities to put certain persons on visa blacklists.
Chinese authorities have also been mindful of the increasing losses to employees attributable to multinational employers that fall behind on their employee payment obligations. In order to prevent employers that pose a flight risk from leaving China, Article 28 of the New Law adds that expatriates with unfulfilled employee payment obligations could be subject to a no-departure restraining order in China until such matters are settled.
Term of Residence Permits
Under Article 30 of the New Law, residence permits issuable in relation to the employment of an expatriate will be valid for a minimum of 90 days, halved from the previous 180 days, and a maximum of 5 years. The valid term of non-work-related residence permits remains at 180 days to 5 years. Since expatriates need to go through the review and approval procedures each time their residence permits are renewed, the shortening of the minimum term of work-related residence permits could arguably raise the frequency of government reviews and approvals and therefore increase the cost of an expatriate’s legal stay in China.
Industry and Occupation Classifications
Article 42 of the New Law provides that China will create and periodically adjust a guidance list classifying industries or sectors with needs and thus permission for employment of foreigners. In the current environment, illegal employment of foreigners is mostly concentrated in certain industries, such as language education and entertainment. This new measure may be used to crackdown on illegal foreign workers in these industries.
Potential Increase in PR Permits
The New Law adds in Article 47 that the Ministry of Public Security shall have the authority to grant permanent residence permits, otherwise known as Green Cards, to foreigners who make “outstanding contributions” to China or “otherwise meet the requirements for permanent residence.” Future implementation rules should provide clarification as to what parameters will be used to measure “outstanding contributions” or to determine whether or not a foreigner has met “the requirements for permanent residence.” To date, the number of expatriates with Chinese Green Cards is still very limited; however, this Article and the expected implementation rules could allow for a potential increase in the number of permanent residence permits granted to foreign nationals.
New Visa Category
The New Law expands the scope of foreigners that may be eligible for entry visas. Specifically, in addition to foreigners who enter China for work, study, family visits, travel or business, under Article 16 of the New Law, foreign nationals with specific skills are also qualified for issuance of “talent” visas. This Article is silent with respect to the type of qualifications required for this category of visa and the relevant approval and issuance procedures, which are yet to be specified in future implementation rules. However, creation of the category of a “talent” visa could ease the way for those foreigners without pre-secured job arrangements to enter China.
Authenticity of Invitation Letters
In reaction to the fact that some companies have been issuing fake or fraudulent invitation letters or other application documents which are a prerequisite for foreigners to obtain work visas, Article 19 of the New Law imposes responsibility on companies for ensuring the authenticity and validity of these documents. Violation of this provision would lead to harsher penalties on the employer, as discussed in greater detail below.
Investigative Powers and Reporting Requirements
For foreigners suspected of illegal entry, stay or employment, the PSB or the entry-exit administration offices may now conduct questioning on site or at a PSB office. The PSB is further authorized to detain such foreigners up to 30 days (or up to 60 days for “complicated” cases). The PSB may also confine foreigners’ activities or movements to certain districts for up to 60 days while they are under investigation.
In addition, Article 45 of the New Law requires employers and schools to report information regarding expatriate employment and foreign student enrollment to the local PSB and also requires the general public to report any suspected violations.
Harsher Punishments for Violations
Fines and Detention. In addition to introducing new measures for detecting and investigating illegal immigration, Chapter 7 of the New Law also imposes harsher punishments on those officially determined to have violated China’s immigration laws. For example, a foreigner who illegally stays in China will be subject to fines of up to RMB10,000 (US$1,574) or detention of 5 to 15 days3. An expatriate who illegally works in China will be subject to a fine of RMB5,000 (US$787) to RMB20,000 (US$3,148), and in serious cases, detention of 5 to 15 days would apply4.
Under the New Law, the fines and penalties imposed on employers of illegal immigrants have also increased. For example, employers will be subject to fines of RMB10,000 (US$1,574) for each expatriate illegally employed, up to an aggregate of RMB100,000 (US$15,740)5, and disgorgement of any monetary gains resulting from the illegal employment. Additionally, an employer who illegally provides invitation letters or other visa application documents will be subject to fines of RMB5,000 (US$787) to RMB10,000 (US$1,574) (for employers that are individuals) or RMB10,000 (US$1,574) to RMB50,000 (US$7,870) (for employers that are entities), disgorgement of illegal gains and responsibility for any deportation expenses. By imposing more severe penalties on employers, the New Law is also trying to tackle illegal immigration by delegating additional responsibility to employers.
Deportation. While the Existing Laws generally provide that foreigners who illegally enter, stay or work in China may be required to depart or be deported, the New Law includes more detailed provisions in this regard. Article 81 of the New Law, for example, provides that foreigners who violate Chinese laws and regulations and are deemed “unsuitable” to stay in China may be required to depart voluntarily within a given time period. Article 62 further provides that missing a departure deadline would subject the foreigner to deportation and a 1 to 5 year ban on re-entry. In addition, the Ministry of Public Security also has the discretion to deport a foreigner and prohibit him/her from re-entering China for 10 years, if he/she commits “severe violations” of the New Law. This Article is designed to penalize those who commit violations that fall short of a criminal violation.
In addition to ... there will be an R1 visa and R2 visa http://www.linkedin.com/groups/hina-Enacts-New-ExitEntry-Administrative-115178.S.238284658?qid=72f2d5d5-f9ec-4625-ba52-e5128ed3cb11&goback=.gmp_115178China expands the scope for the foreigners who may be eligible for entry visas.
In addition to visas issues for work, study, family visits, travel or business, foreign nationals endowed with certain specific skill can also be issued “talent” visas. It is not clear yet the type of qualifications required for this category of visa and the relevant approval and issuance procedures.
the R1 visa and R2 visa sort of explainedfrom http://www.china-briefing.com/news/2013/05/06/china-planning-to-issue-five-year-multi-entry-visas-to-qualified-foreigners.html
he Draft reveals two new types of visas – the R1 visa and the R2 visa – specifically designed for foreign talents and professionals working at a senior level and possessing skills that the country urgently needs. A R1 visa is classified as a residence visa, while an R2 visa is a visitors visa which may allow multiple entries and exits from the country.
Both R1 and R2 candidates should be experts recognized by provincial-level governments and above, and professionals that China urgently needs. Candidates will also be required to submit relevant supporting materials during the application. Direct family members of the visa holder, such as spouses, parents, and children under 18 years old, may apply also apply for visas as dependents.
“The regulation will especially help those who work in other countries but want to spend time working in China. India has already had this five year multi-entry visa program in place for a number of years, so China is playing catch up as regards its ability to attract foreign talent,” comments Chris Devonshire-Ellis of Dezan Shira & Associates.
The usual provisoEvery office in every province will come up with its own interpretation of these regulations.
** My thanks go to the companies from whose newsletters I have cribbed these extracts ... we could request this information from the
P*S*B or our employers
but it is doubtful if either of them could provide an explanation that makes sense.