On 30 June 2012, the Standing Committee of Chinese National People's Congress enacted the "Exit and Entry Administration Law of the People's Republic of China" (the "New Law"), which took effect on 1 July 2013. The State Council subsequently promulgated the "Administrative Regulation of the People’s Republic of China on the Entry and Exit of Foreigners" (the "New Regulation") on 22 July 2013, which will come into force on 1 September 2013. The New Law and the New Regulation replace the existing laws and regulations which had been in effect since the mid 1980s. In this article, we highlight some salient points of the New Law and the New Regulation especially those employment-related immigration matters:
1. Changes to the visa categories and resident permits
Under the New Regulation, the types of visa have been increased from 8 to 12, and the main changes to the visa categories are:
- Dividing F visa into F visa and M visa: F visa, which is currently also used for business purposes, will only be reserved for non-commercial activities such as for scientific, cultural, athletic and educational purposes. A separate M visa will be created to cover business and trade activities.
- Dividing L visa into L visa and Q visa: Currently, foreigners with L visa may enter China for tourism, family reunions or personal affairs. As this visa category does not precisely correspond to the purpose of these various types of visits, the New Regulation has limited L visa to tourism purposes only and, at the same time, introduced a "family reunion" visa called Q visa, which will be issued to the relatives of Chinese citizens or permanent residence applying to enter and reside in China for purposes of family reunion. Q visa is also divided into Q1 visa (for long term stay of more than 180 days) and Q2 visa (for short term visit of less than or equal to 180 days).
- Dividing Z visa into Z visa and S visa: Currently, Z visa is the "work visa" issued to foreigners working in China and their accompanying family members. Under the New Regulation, Z visa shall be issued to persons applying to work in China only. The family members of the foreign workers will have to apply for S visa which is newly created to be issued to foreigners with family member residing in China for work or study etc. who come to China for family visit, or other persons who need to reside in China for private purposes. S visa is divided into S1 visa (for long term stay of more than 180 days) and S2 visa (for short term visit of less than or equal to 180 days). To be eligible to apply for S1 visa, the applicant shall be the spouse, parents, children under the age of 18, or parents-in-law of the foreigner who is residing in China.
- Creating new R visa: A new category of talent visa called R visa is firstly introduced by the New Regulation. R visa will apply to foreign high-level talents and professionals whose skills are urgently needed in China.
- Splitting X visa: The New Regulation has divided the current X visa (student visa) into X1 visa and X2 visa. X1 visa applies to foreigners coming to China for long-term study for more than 180 days while the X2 visa applies to foreigners coming to China for short-term study for less than or equal to 180 days.
The New Regulation has also newly categorized residence permits into five types, namely working residence permits, study residence permits, journalist residence permits, family reunion residence permits and personal affair residence permits. Different types of visa holders shall apply for the corresponding residence permits for residing in China.
2. Harsher penalties imposed to tackle illegal employment
The New Law imposes harsher sanctions with the aim of tackling illegal entry, illegal residence and illegal employment by foreigners. The New Law, for the first time, gives clear definition of "illegal employment", and stipulates that foreigners should obtain the required identification and employment documents when they are working in China.
Penalties for illegally working in China include:
- Sanctions on Foreigner: Any foreigner working in China without valid employment documentation may be subject to a fine ranging from RMB 5,000 to RMB20,000. In serious circumstances, detention from 5 to 15 days may also be imposed.
- Sanctions on Employer: A fine of RMB10,000 may be imposed on employer for every foreigner illegally employed subject to a cap of RMB100,000. Any monetary gains from the employment of such individuals will also be forfeit.
- Possible Deportation: Those who have committed "severe violations" of the New Law that do not constitute crimes may be deported and prohibited from entering China for a period of up to 10 years.
Other than the salient points above, the following points of the New Law and New Regulation are also noteworthy:
- It is newly provided in the New Law that the foreign executive of a company in China may be prohibited from departing China if he or she defaults in paying labour remuneration to workers.
- The New Regulation provides that relevant entities must report to the local entry and exit administrative authorities if the foreign nationals employed by them have left their jobs, changed work locations, or if the overseas students enrolled by them have left.
As the New Law and the New Regulation have just been promulgated, it is advisable that employers shall pay close attention to their implementation status in the coming months.