Editor’s note: Despite all the hype about China’s changes to immigration laws, there’s been very little clarity on what these changes actually mean and how they’ll affect foreigners in China. The article below, taken from the blog of Beijing-based immigration lawyer Gary Chodorow, sheds light on the most recent regulations that will come into effect on September 1, 2013. However, this article, just like the actual Entry-Exit Administration Law, is a work in progress and is subject to change and updates. Please stay tuned to Mr.Chodorow’s blog for the latest info on China’s immigration laws.
The State Council just made public on July 22 regulations implementing the Exit-Entry Administration Law (“EEAL”). The law and regulations cover, among other things, foreigners’ visas, entry, and exit; foreigners’ stay, residence, and permanent residence; and investigation, penalties, and deportation. The new regulations become effective on September 1, 2013. They differ significantly from draft regulations which had been released for public comment by the State Council on May 3, 2013.
1) What are the new visa classifications in China?
The below table compares selected visa classifications under the current regime with the new visa classifications:
|Current Visa Classifications||New Visa Classifications Effective September 1 (State Council Regs, Arts. 6-7). |
|F visa: Business visa, issued to persons invited to give lectures or for official visits; for purposes of business, scientific, technological, or cultural exchanges; or for short-term studies or internships lasting less than six months. |
|F visa: Will be issued to persons engaged in exchanges, visits, inspections, etc. The draft State Council regulations would have instead issued F visas to persons invited to China on a non-commercial exchange or visit for scientific-technological, education, cultural exchanges, health or sports activities. See also M visas below. |
|J visa: Journalist visa, issued to foreign journalists. |
|J1/J2 visas: J-1 visas will be issued to resident foreign correspondents of foreign news organizations resident in China; J-2 visas will be issued to foreign correspondents who make short trips to China to gather and report news. |
|L visa: Tourist visa, issued to persons entering China for tourism, to visit relatives, or for other private purposes. |
|L visa: For persons coming to China for tourism. The requirement of the draft State Council regulations that round-trip airline tickets and hotel reservations be provided in every case has been dropped. (See Draft State Council regs at art. 9(6)). Nevertheless, visa agencies may require such evidence on a case-by-case basis. See also Q and S visas for those visiting relatives. |
|M visa: Will be issued to persons who come for business or commercial activities. |
|Q1/Q2 visas: Q1 visas will be issued to the relatives of Chinese citizens applying to enter and reside in China for purposes of family reunion, to the relatives of persons who have qualified for permanent residence in China, and to persons applying to enter and reside in China for purposes such as adoption. Q2 visas will be issued to the relatives of Chinese citizens and of persons qualified for permanent residence in China who are applying to enter and stay for a short period to visit relatives. |
|R visa: Will be issued to foreign high-level talents that China needs and to specialized talents that are urgently needed due to short supply. (Note that the final regulations don’t adopt separate R1 and R2 classifications as proposed in the draft). |
|S1/S2 visas: S1 visas will be issued for purposes of entry and long-term family visits with foreigners residing in China for work, study, etc. by a spouse, parents, children under age 18, parents-in-law, and other persons who need to reside in China for private purposes; S2 visas will be issued to persons applying for entry and short-term visits with foreigners staying or residing in China for work, study, etc. by relatives and other persons who need to stay in China for private purposes. |
|X visa: Student visa, issued to students and others coming to China for training or internship for a period of six months or more. |
|X1/X2 visas: X1 visas will be issued to persons applying for long-term study in China; X2 visas will be issued to persons applying for short-term study in China. Part-time work and internships off campus may be authorized. See new S1/S2 visas for accompanying family members. |
|Z visa: Work visa, issued to foreign workers and their accompanying family members. |
|Z visa: Will be issued to persons applying to work in China. The final regulations don’t adopt the separate classifications for long-term Z1 and short-term Z2 visas proposed in the draft regulations. See new S1/S2 visas for accompanying family members. |
2) What is the duration of stay for the new visa classifications and the duration of stay for residence permits?
Stay certificates and “short-term” visas will be issued for a maximum of 180 days. (EEAL, art. 34; State Council regs, art. 36(4)). An employment-type residence certificate may be issued valid for 90 days to 5 years. (EEAL, art. 30). In contrast, a non-employment-type residence certificate may be issued valid for 180 days to five years. (EEAL, art. 30). The law and State Council regulations don’t specify how to decide where within those ranges a particular certificate should be issued.
3) 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 works illegally, 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). 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 re-enter for one to five, or 10 years in the case of “severe” violations. (EEAL, arts. 62 and 81). Under the State Council’s rules, a foreigner is responsible to pay the costs related to his or her 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).
4) How is unauthorized employment defined?
The new law defines behavior that “shall” be deemed unlawful employment: First, “work in China without obtaining an employment license or work-type residence permit” is illegal. (EEAL, art. 43(1)). Second, “work in China beyond the scope prescribed in the work permit” is illegal. (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 to which one’s work permit is restricted. (Draft State Council regs, art. 40). But the final regulations omitted any definition of unauthorized employment. Perhaps the draft provision was deleted because it made it difficult for employers to comply for employees who work remotely or at multiple locations. Third, it’s illegal for foreign students to work without authorization or beyond the scope authorized. (EEAL, art. 43(3).)
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 foreigner an “independent contractor” or a “freelancer” will not be a cure where the facts establish that there is a labor relationship. Under prior law, a Labor Department order defined what “work” means by reference to whether a local labor contract existed, the source of compensation, and the time worked:
For foreigners working 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 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 not clear whether that Labor Department order remains good law.
5) 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.
6) 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.
7) 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. T
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.
Read the full article here.
Gary Chodorow is a lawyer in Beijing representing companies, investors, and families in U.S. and China visa, immigration, and nationality matters. His blog, lawandborder.com, focuses on U.S. and China immigration law.
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Visa's not requiring airline tickets and hotel bookings ? How about the ridiculous need for having to show ones passport details for booking into a hotel??? I guess that hasn't changed[?] I guess the communist[?] party wouldn't like visitors "wandering around" and not know where they are[?] By the way where can I find the state council art. 9for L visa's
Aug 05, 2013 09:22 Report Abuse
Actually, I heard that law was repealed in 2008 for the Olympics, and have been able to talk some owners into taking me. If you stay polite but firm and force them to call the police station and ask if it is a law foreigners can't stay at their hotel, they will say it's fine. But like all laws in China, they are merely suggestions (who knows what the police force will do) and nobody actually knows what the real truth is.
Aug 12, 2013 08:03 Report Abuse
I have never show passport for buy train tickets , neither to enter any public place , neither to boarding any ships when sail to some islands with 0 foreign visitors. Actually I never show my passport anywhere and nobody ask. Only to cross borders to hong kong they look at my passport. Never any trouble beside they always laugh at my picture ;O)
Sep 12, 2014 21:02 Report Abuse
I guess it maybe depend of your origin country. If I want a train ticket or book hotel ect I never show any passport or any kind of id. Shure if your origin is a country with known trouble with china , or other kind of stuff m,aybe this is reason. Hm ,,, I just buy a ticket to train when I need it ,,, never show any kind of id...
Sep 15, 2014 14:13 Report Abuse
yes I know , But when I buy long run train tickets ( example from my homecity Shenzhen to Beijing) I have never being asked to show any id. In june I was sailing to a southern island with my friends and girlfriend. I cant remember name of island but it is a place with 0 foreigners. very small closed island. to be able to get there you need to board 2 ships. Those fast ships ( cant member name ) do the trip in few hours. normally foreigners is not allowed to visit. I was very surprised that i could just buy the tickets despite the tough security. I never show any id ect , I just buy tickets and board the ship. Different people and different experiences.
Sep 15, 2014 14:23 Report Abuse
It must depend on the city. When I have bought train tickets in Beijing, Tianjin, Gunagzhou and other Tier 1 cities I have always been asked for ID. The ID number is printed on the ticket and both have been checked on entrance to the station and again prior to boarding.
Sep 17, 2014 02:11 Report Abuse
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