June 20, 2013

On May 3, 2013 the Chinese government has published its drafts for the new “Law of the People’s Republic of China on the Control of the Exit and Entry of Citizens”, which is scheduled to come into effect on July 1, 2013, and has requested feedback. We refer to our previous Global Briefs from July 13, 2012 and April 17, 2013 for more background information regarding the upcoming new law. The proposed changes most notably include changes to visa categories and clearer definitions of what is considered illegal work and illegal stay.

Proposed Changes to Visa Categories

Currently foreign employees travelling to China generally require either of the following 2 types of visas: a F-visa for stays with a business or work purpose up to 90 days, or a Z work visa for any work related stay over 90 days. The new proposed Law will significantly change this, resulting in 6 new business and work related visa categories:

  • The previous F-visa category will now only apply to business visitors engaged in non-commercial activities, including science, education, culture, health and sports.
  • A new M-visa category will be implemented for visits to China for commercial business and trade purposes.
  • The old Z-visa category will be replaced by 2 new visa┬ácategories:

The new Z1-visa category will apply to foreigners working in China for more than 90 days (long term).

The new Z2-visa category will apply to foreigners working in China for up to 90 days (short term). Note that with the implementation of this new short-term work permit it will no longer be allowed to work on a business visa (either F or M). Z2-visa holders do not require to obtain a residence permit.

  • Two new visa categories will be implemented to attract foreigners who have specialized or shortage-occupation skills or are recognized by a Chinese Government authority as possessing exceptional and internationally-recognized expertise/skills:
  1. The R1-visa will allow long-term residence for up to 5 years. The R2-visa will apply for stays up to 6 months.
  2. The Ministry of Human Resources and Social Security will indicate positions that qualify for the R visa.

New Definitions for Illegal Residence and Illegal Employment

The proposed new Law also provides clearer definitions for illegal residence and employment.

The new definition of Illegal Residence includes:

  • Overstaying the validity of a visa, or visa-free period in case of visa-exemption;
  • Staying outside the permitted area of stay.

The new definition of Illegal Employment includes:

  • Working in China without a valid employment license, work permit and residence permit, unless an exemption has been obtained;
  • Working for an employer other than the sponsor of the work permit;
  • Working outside the jurisdiction of the work permit, i.e. in locations other than where their sponsor is registered;
  • Foreign students working without authorization or beyond the scope of school-related campus work.

Note that work is defined by having an actual work relationship, whether or not an employment contract is in place and/or the foreigner receives any remuneration. Furthermore, if an illegally employed foreigner is deported and cannot afford the deportation expenses, the entity or individual who has illegally employed him/her should bear the expenses.

Punishment for Immigration Related Violations

Additionally, the proposed Law provides authorities with enhanced enforcement powers, requiring foreigners to provide biometric data when applying for residence permits, authorizing body searches of foreigners entering or exiting China, imposing increased reporting requirements for employers and allowing the detention of foreigners during investigations of violations.

The Law also increases penalties and fines for violations, and the Regulations add to this aspect:

  • The maximum fine for providing fraudulent or fake immigration documents is RMB2,000.
  • If a foreigner is deported and cannot bear the costs of deportation, the employer or sponsor will be held liable for such costs.

ACTION ITEMS FOR EMPLOYERS

Companies who have any plans, or are in the process, of bringing foreigners to China for either business or work purposes are advised to contact their Pro-Link GLOBAL Immigration Specialist in China for advice on the appropriate type of visa to use and for other details on how the new law is expected to affect them.

Caveat Lector | Warning to Reader

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by the Pro-Link GLOBAL Knowledge Management Team and our Pro-Link GLOBAL China office.

Information contained in this Global Brief is prepared using information obtained from various media outlets, government publications and our KGNM network of immigration professionals. Written permission from the copyright owner and any other rights holders must be obtained for any reuse of any content posted or published by Pro-Link GLOBAL that extends beyond fair use or other statutory exemptions. Furthermore, responsibility for the determination of the copyright status and securing permission rests with those persons wishing to reuse the materials. Interested parties are welcome to contact the Knowledge Management Department (km@pro-linkglobal.com) with any additional requests for information or to request reproduction of this material.