China Enacts New Exit-Entry Administrative Law; Targets Illegal Entry, Stay and Employment of Expatriates (Sunnyvale, CA)- China has formally enacted a new Exit-Entry Administration law that imposes stricter control over the entry, residence and work for expatriates in China. The new law that takes effect on July 1, 2013 also governs the exit-entry administration of Chinese nationals but has put a strong emphasis on foreigners working in China and foreign invested enterprises hiring foreign employees in China. Exit-Entry Administration of Expatriate Employees in China: Key Highlights Collection of biometric data: For the first time, requirements have been imposed on expatriate employees and visitors to provide biometric data as part of the application process for residence permits in China.
Expatriate employees in China are required to provide their fingerprints and their “other biometric data” – which can possibly include retinal scans, or behavioral biometric data, such as voice or handwriting samples to the Public Security Bureau (PSB). Tourists, business travelers, students may also be asked to provide their biometric data. The Ministry of Public Security or the Ministry of Foreign Affairs may enact additional laws in this area with regard to the collection of data.
China Expatriate Entry and Exit limitations Foreigners who are believed to possibly engage in activities contradictory to the category of their entry visa will be denied entry visas for China. Also, provisions allow issuing authorities significant discretionary powers to put certain persons on visa blacklists. Expatriate’s unfulfilled employee payment obligations may be subject to a no-departure restraining order in China until such issues are resolved. China Expatriate Residence Permit Term Decreased Residence permits issued in conjunction with the employment of an expatriate will now be valid for a minimum of 90 days, which was previously 180 days, and a maximum of 5 years. For every renewal, expatriates need to seek fresh approval. With the shortened tenure of permits, the cost of expatriates’ legal stay in China is expected to rise. China Expatriate Employment: Industry and occupation classifications China will create a guidance list mentioning industries or sectors with needs and thus permission of foreign employment. The guidance will be updated from time to time. The new regulation is expected to curb rising illegal employment of foreigners in mainly the language education and entertainment sectors.
China Visa Category: New Additions China 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. China Work Visa Documentation: Ensuring Authenticity Chinese government has now shifted the onus to the employers to ensure authenticity and validity of the invitation letters and other documents they issue to foreign workers to obtain work visas. Noncompliance of these provisions attracts harsher sanctions on the employer. China Expatriates: Empowered Public Security Bureau China’s Public Security Bureau or the entry-exit administration offices have been given absolute authority:
to question on site or at a PSB office foreigners suspected of illegal access, stay or employment to detain those foreign suspects for up to 30 days in normal scenario and the detention can be extended to 60 days for complex cases, and confine activities or movements of the foreigners to certain districts for up to 60 days.
China Expatriates: New Reporting requirements for employers and schools Employers and schools are required to report information to local PSB on any expatriate employment and any foreign student enrollment. General public are required to report any alleged infringements. Infringement Penalties Following are the penalties for violating the revised rules:
Foreigners staying illegally in China will have to pay a penalty of up to RMB 10,000 or may be subject to imprisonment of 5-15 days. Expatriates illegally working in China will have to pay a fine of RMB 5,000 to RMB 20,000; in complex cases, they may also be subject to imprisonment of 5-15 days.
Employers will be subject to a fine of RMB10, 000 for every illegal employment up to an aggregate of RMB100, 000 and disgorgement of monetary gains from the illegal employment. Employers who illegally provide invitation letters or other visa application documents will be subject to fines of RMB5, 000 to RMB10, 000 (for employers that are individuals) or RMB10, 000 to
RMB50, 000 (for employers that are entities), disgorgement of illegal gains and responsibility for any deportation expenses. Deportation ď‚§ ď‚§
Foreigners violating Chinese laws and regulations are considered unsuitable to reside in China and are required to leave the country voluntarily within a given period of time. Non-compliance with the departure deadline may attract a re-entry ban of 1-5 years and the foreigner may be subject to deportation. For foreigners committing serious infringements, the Ministry of Public Security may deport and even ban them from re-entering China for a period of 10 years.
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