China is overhauling its immigration law regime. A new Exit-Entry Administration Law (EEAL), enacted by the National People’s Congress Standing Committee, became effective July 1, 2013. New State Council regulations became effective Sept. 1, 2013.

The law and regulations cover, among other things, visas, entry, and exit; stay, residence, and permanent residence; and investigation, penalties, and deportation.

The new immigration law regime is a work in progress. Further rules and guidance are expected from the Ministry of Public Security, Ministry of Foreign Affairs, Ministry of Human Resources and Social Security, and Ministry of Education. Local governments are expected to revise their rules as well. For example, the Beijing Public Security Bureau published provisional Procedures of Visa/Stay Permit/Residence Permit Application for Foreign Citizens on Sept. 5, 2013.

Our law firm is closely monitoring related developments and will update this FAQ periodically. Feel free to ask questions or add your thoughts in the comments section.

VISAS, STAY CERTIFICATES, AND RESIDENCE PERMITS, IN GENERAL

1. What’s the difference?

Visas:

Under the new law, PRC embassies, consulates, and other visa-issuing agencies outside of Mainland China (e.g., Chinese Visa Application Service Centers) are responsible for issuing visas (签证). (EEAL, art. 4). In narrow circumstances (e.g., emergencies) the public security bureau (PSB) at a port of entry (e.g., airport) can issue a single-entry visa valid for not more than 30 days (EEAL, art. 20).

Also, the exit-entry office of the public security bureau (PSB) can issue visas to extend one’s stay (EEAL, art. 29; State Council regs, art. 12) or change the purpose of stay (State Council regs, art. 10) in Mainland China.

Residence Permits: J1, Q1, S1, X1, and Z visas are issued to individuals intending to enter China for purposes of taking up residence. These visas are valid for a single entry to China. Within 30 days of entry, these individuals must apply to a PSB exit-entry office for a residence permit (居留证件). (EEAL, art. 30; State Council regs, art. 9). Once issued, a residence permit can be used to enter China instead of a visa. (EEAL, art. 22).

Stay Certificates: Some categories of foreign nationals entering China may be granted stay certificates (停留证件) instead of visas or residence permits. For example:

Foreign nationals whose governments have reciprocal visa waiver agreements with China (e.g., tourists from Singapore, Brunei, and Japan)

Persons transiting through Beijing, Shanghai, Guangzhou, Chengdu, Chongqing, Shenyang, or Dalian within 72 hours.

Persons who renounce PRC nationality.

Persons whose residence permits have been cancelled who wish to remain in China for up to 30 additional days as a “grace period” to travel wrap up their affairs in China.

Persons whose visas or residence permits are cancelled or confiscated and who are ordered to depart the country by a specified date will be given a stay certificate valid until that date. (EEAL, art. 33).

2. What are the new visa classifications?

The Ministry of Foreign Affairs has issued a bilingual Notice on Handling PRC Visa Applications (申请办理中华人民共和国签证须知) spelling out China’s new visa classifications. They are listed below. See our related article for further details.

Visa Classification Description of Visa C Issued to foreign crew members of aircraft, trains, and ships, or motor vehicle drivers engaged in cross-border transport activities, or to the accompanying family members of the crew members of the above-mentioned ships. D Issued to those who intend to reside in China permanently. F Issued to those who intend to go to China for exchanges, visits, study tours, and other activities. G Issued to those who intend to transit through China. J1 Issued to resident foreign journalists of foreign news organizations stationed in China. The intended duration of stay in China exceeds 180 days. J2 (short-term) Issued to foreign journalists who intend to go to China for short-term news coverage. The intended duration of stay in China is no more than 180 days. L Issued to those who intend to go to China as a tourist. M Issued to those who intend to go to China for commercial and trade activities. Q1 Issued to those who are family members of Chinese citizens or of foreigners with Chinese permanent residence and intend to go to China for family reunion, or to those who intend to go to China for the purpose of foster care. The intended duration of stay in China exceeds 180 days.”Family members” refers to spouses, parents, sons, daughters, spouses of sons or daughters, brothers, sisters, grandparents, grandsons, granddaughters and parents-in-law. Q2 (short-term) Issued to those who intend to visit their relatives who are Chinese citizens residing in China or foreigners with permanent residence in China. The intended duration of stay in China is no more than 180 days. R Issued to those who are high-level talents or whose skills are urgently needed in China. S1 Issued to those who intend to go to China to visit the foreigners working or studying in China to whom they are spouses, parents, sons or daughters under the age of 18 or parents-in-law, or to those who intend to go to China for other private affairs. The intended duration of stay in China exceeds 180 days. S2 (short-term) Issued to those who intend to visit their family members who are foreigners working or studying in China, or to those who intend to go to China for other private matters. The intended duration of stay in China is no more than 180 days. “Family members” refers to spouses, parents, sons, daughters, spouses of sons or daughters, brothers, sisters, grandparents, grandsons, granddaughters and parents-in-law. X1 Issued to those who intend to study in China for a period of more than 180 days. X2 (short-term) Issued to those who intend to study in China for a period of no more than 180 days. Z Issued to those who intend to work in China.

3. What are the new types of residence permits?

Under the regulations, residence permits are divided into the following types:

1. Residence permits for employment (工作类居留证件), issued to foreigners who will work in China. A person entering on a Z (work) visa would apply for this type.

2. Residence permits for study (学习类居留证件), issued to foreigners who will study in China. A person entering on an X1 (student) visa would apply for this type.

3. Residence permits for journalists (记者类居留证件), issued to foreign journalists who reside in China on behalf of permanent offices of foreign news agencies. A person entering on a J1 (journalist) visa would apply for this type.

4. Residence permits for family reunion (团聚类居留证件), issued to persons seeking to reside in China with Chinese citizen or permanent resident relatives, or who need to live in China for foster care. A person entering on a Q1 visa would apply for this type.

5. Residence permits for private affairs (私人事务类居留证件), issued to certain relatives of foreign nationals holding residence certificates for purposes of employment, study, etc. These permits are also issued to foreigners who need to reside in China to deal with other private affairs. A person entering on an S1 visa would apply for this type.

4. What is the duration of stay for the new visa classifications and residence permits?

Stay certificates and “short-term” visas will be issued for a maximum stay of 180 days. (EEAL, art. 34; State Council regs, art. 36(4)).

An employment-type residence permit may be issued valid for 90 days to 5 years. (EEAL, art. 30). In contrast, a residence permit issued other than for employment may be issued valid for 180 days to five years. (EEAL, art. 30).

The law and State Council regulations don’t specify how, within those ranges, to decide the length of stay for a particular individual’s stay certificate, visa, or residence certificate. Local practices vary. According to the Beijing provisional procedures, for example:

RESIDENCE PERMIT TYPE Period of Validity Residence permit for employment Same period as the work permit or foreign expert certificate Residence permit for study Same period as shown on the certification documents of enrollment (but not shorter than 180 days). Residence permit for family reunion For an applicant under age 18 or over age 60, not longer than 3 years. (But for a person under age 18, the expiration date can’t exceed their 18th birthday). For others, from 180 days to 1 year. Residence permit for private affairs Same period as the host’s residence permit (but not shorter than 180 days)

VISA CLASSIFICATION Entries if Granted New Visa Classification Enter Before Date if Granted New Visa Classification Duration of Extension or Each Stay Under New Visa Classification** F 0, 1, 2, or multiple Maximum 1 year Maximum 180 days L 0, 1, 2, or multiple Maximum 1 year* Maximum 30 days extension M 0, 1, 2, or multiple Maximum 1 year* Maximum 180 days Q2 0, 1, 2, or multiple Maximum 1 year* Maximum 180 days R 0, 1, 2, or multiple Maximum 5 years Maximum 180 days S2 0, 1, 2, or multiple Maximum 1 year* Maximum 180 days X2 0, 1, 2, or multiple Maximum 1 year Maximum 180 days

* The U.S. and China have mutually agreed to increase visa validity for these visa classifications to 10 years. Canada and China subsequently reached a similar agreement.

** For a person granted an extension of stay, the cumulative time of all extensions should not exceed the originally allotted period of stay as shown on the visa. (EEAL, art. 29). For a person who changes to a new visa classification, the cumulative period of stay since the date of the most recent entry should not exceed one year. (Beijing provisional procedures).

5. What are the grounds of ineligibility?

The following are grounds for denying a visa, residence certificate, stay certificate, or entry to China (EEAL, arts. 21, 25; State Council regs., art 21):

a. The foreign national has infectious tuberculosis or other infectious diseases that might seriously endanger public health. (EEAL, art. 21). Further, the Exit-Entry Inspection and Quarantine Bureau prohibits entry of persons who suffer from serious mental illness. Implementing Rules of the PRC Health and Quarantine Law, State Council No. 574 (Apr. 24, 2010). The 2010 amendment to these Rules removed the prohibition on entry for persons with AIDS.

b. The foreign national practices fraud in the application process.

c. The foreign national is unable to guarantee that he or she can cover the costs for the period in China.

d. The foreign national is unable to submit relevant information requested by the visa-issuing office or exit-entry administration.

e. In the case of an applicant to the exit-entry administration, he or she is in violation of relevant laws and regulations. This could include, for example, a person who during the current stay has worked without authorization (see EEAL, art. 43), failed to report to the exit-entry administration a change in the purpose of his or her stay (see EEAL, art. 34), or overstayed.

f. The foreign national may engage in activities in China inconsistent with his or her visa classification.

g. The foreign national has been deported or expelled but not fulfilled the required number of years abroad before seeking readmission.

h. The foreign national might undermine China’s national security and interests, disturb social public order, or be engaged in other illegal criminal activities.

i. Other circumstances cause the visa-issuing agency or exit-entry administration to believe it would be inappropriate to issue the visa, residence certificate, or stay certificate.

j. In the case of a foreign national seeking entry to China, other laws or regulations prohibit entry.

6. Who needs a medical exam?

Visa applicants: Under prior rules, foreigners coming to China for residence one year or longer should, when applying for visas at the Chinese embassy or other visa issuing agency abroad, get a medical exam. (2010 Implementing Rules, art. 6). Under the new regulations, this is no longer a requirement. Now, a visa-issuing agency will require a medical exam only if the officer has particular concerns about the applicant’s health condition.



Employment license applicants: Rules require a health certificate as part of the application for an employment license. (1996 regs on the Employment of Foreigners, art. 11).



Residence permit applicants:

The new State Council regulations require a health certificate for anybody applying for a residence permit valid for one year or more.

The new regulations don’t adopt a provision in the draft regulations (art. 22) that would have exempted minors under age 16 from the medical exam. However, local rules may have the same result. For example, Beijing doesn’t require a medical exam from applicants under age 18.

As in the past, the exam is valid for 6 months (State Council regs, art. 16), so it may be possible to use the same certificate as used for the employment license. The regulations don’t require a medical from applicants extending a residence permit, changing from one type of residence permit to another, or replacing a residence permit. (State Council regs, art. 17).

WORKING IN CHINA

7. When is a Z (work) visa required, as opposed to an M (business) visa?

A Z (work) visa is required if a foreign national has a labor relationship with a PRC work unit. In addition, a foreigner with a foreign labor contract and foreign source of remuneration will need a Z (work) visa if engaged in work-like activities for 3 months or more. According to a Labor Department order:

For foreigners working (工作) 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 (就业) 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 unclear whether the Labor Department order will be modified in light of the new law, but so far it remains in effect.

Existing rules require that Z visas be reserved for positions for which the employer has a “special need” and that is currently a “shortage” occupation in China. (1996 regs on the Employment of Foreigners, art. 6). These fairly vague rules lend themselves to varying local interpretations.

In Guangdong Province, 2011 rules require the provincial government to formulate and publish a list of occupations for foreign nationals’ employment, specifying encouraged and restricted occupations, in light of the economic and social development level and based on the supply and demand of human resources. (Interim Provisions of Guandgong Province on Administration of and Services to Aliens, art. 30).

The new Exit-Entry Administration Law is based on the Guangdong model. Various departments should cooperatively formulate and periodically adjust a guidance list regarding special need / shortage occupations. The list should be based on economic and social development needs, as well as the supply of and demand for human resources. (Art. 42). No such list has been published yet. It remains to be seen how the new law will be interpreted and enforced.

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 (on more than the current ad-hoc basis), further rules will need to be issued–probably by the State Administration for Foreign Expert Affairs–to define their requirements and procedures.

10. 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 announced that employment license applicants will need to submit a “certificate of no criminal conviction” (also known as a police clearance letter) effective July 1. Beijing, Qingdao, and Hangzhou have joined other cities, such as Suzhou and Nanjing, which already had similar requirements in place. For more information, see Police Clearance Letters for Foreign Workers: Now Required in Beijing, Qingdao, Hangzhou Too.

UNAUTHORIZED EMPLOYMENT

11. 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 engages in “unauthorized employment” (非法就业), 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). On a related note, if a foreign entity uses a foreign national (or a PRC citizen) to establish a representative office or conduct business activities of a representative office without registration, the registration authority may order it to suspend activities and impose a penalty of RMB 50,000 to 200,000. (Administrative Regulations on the Registration of Resident Representative offices of Foreign Enterprises, art. 35).

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 reenter for one to five, or 10 years in the case of “severe” violations. (EEAL, arts. 62 and 81). A foreign national is responsible to pay the costs related to his or her own 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).

12. How is unauthorized employment defined?

The new law defines behavior that “shall” be deemed “unlawful employment” (非法就业):

First, “work” (工作) in China without obtaining an employment license and residence permit for work is illegal. (EEAL, art. 43(1)).



Second, it’s illegal to work in China beyond the scope of the work specified in the employment license (“出工作许可限定范围在中国境内工作的”). (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 specified in the employment license (工作许可证件) are restricted. (Draft State Council regs, art. 40). While the final regulations omit these specifics, they are probably implied. One ambiguity is the extent to which an employee working in one city can be assigned to work short-term in other cities.



Third, it’s illegal for foreign students to do work that violates work-study rules or goes beyond the scope of the position or hours approved by the exit-entry administration. (EEAL, art. 43(3).) As background, 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 foreign national an “independent contractor” or a “freelancer” or an “intern” will not allow an employer to escape liability for unauthorized employment where the facts establish that there is a labor relationship. Similarly, a 1994 government notice warned against illegal employment disguised as “exchange” or “training.

Nor can foreign nationals escape liability for unauthorized employment by claiming they are self-employed in China. Chinese law recognizes something similar to self-employment, namely, the individual industrial and commercial enterprise (IICE or 工商个体户). A Chinese citizen may register an IICE. (General Principles of Civil Law, art. 26, adopted by the NPC and promulgated by the President on Apr. 12, 1986; Regulations on Individual Businesses, art. 2, adopted by the State Council on Mar. 30, 2011). Hong Hong and Macao residents who are Chinese citizens, as well as Taiwan residents, may also register an IICE. (Id., art. 27). However, foreign nationals do not have this right.

As explained above, a foreign national who enters into a labor relationship with a PRC work unit is “working” in China. Moreover, “work” takes place if a foreigner with a foreign labor contract and foreign source of remuneration is engaged in work-like activities for 3 months or more, according to the Labor Department order cited above.

13. “I’ve been offered a job in China. The employer says I should first to apply for an tourist or business visa to start work, then they will shift me to a work visa. Does that sound right?”

You can’t work for a China employer with a tourist or business visa. The statute is clear that work for a Chinese employer without a work-type residence permit is illegal. (EEAL, art. 43(1)). It’s a common scam for agencies/employers that are unable to secure such a permit to bring employees to China to work illegally with non-work visas. Further, without a work-type residence permit, you lack the legal protections afforded by a labor relationship, such as the right to use labor arbitration to seek unpaid wages.

Similarly, don’t come on the promise that after arrival the employer will seek authorization for you to work. As mentioned above, they can’t put you to work until you actually hold a work-type residence permit, and with narrow exceptions it’s not possible to change from a non-work visa to a work-type residence permit within China; instead, the applicant normally needs to seek a Z visa at a PRC consulate or other visa-issuing agency abroad.

Some employers will argue that the foreigner is not actually “working” so doesn’t need a work-type residence permit. As mentioned above, however, if the facts show that the foreign national’s activities constitute work, the absence of a written labor contract is not controlling. 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. Working in China without a work-type residence permit is engaging in high-risk behavior.

STUDENTS AND INTERNS

14. What work authorization and internship opportunities are available to foreign students with residence certificates for study?

Under State Council regulations, a person with a residence certificate for study who wants to take a part-time job or internship off campus should obtain approval from the school, then apply to the PSB Exit-Entry Administration for a notation to the residence certificate showing the part-time job or the location and period of internship off campus. (State Council regs, art. 22). Notice that short-term students with X2 visas do not have such opportunities.

The law delegates to the Ministry of Education the obligation to establish a framework for foreign students to obtain work authorization. (EEAL, art. 42.). To date, the national framework has not been published. But some local policies have been established. For example:

Shanghai has issued interim rules that allow for off-campus practical training without pay (except for reimbursement of travel and meal expenses).

Beijing’s Zhongguancun Science Park allows foreign students at Beijing universities, with the university’s agreement and recommendation letter, to apply to the PSB exit and entry authorities to add to their residence permits for study an “innovation” annotation to concurrently carry out innovative activities.

Dalian’s High Tech Industrial Zone allows foreign students to engage in practical training with approval from the school, employer, and PSB.

Yet in many cities it’s not yet possible to apply for authorization for a part-time job or internship, except on an ad-hoc basis.

It’s illegal for foreign students to work without authorization or beyond the scope authorized. (EEAL, art. 43(3).)

In contrast, under former rules, “work-study” was allowed in accordance with the school’s regulations. (Rules on Foreign Student Enrollment in Institutions of Higher Education, promulgated Jan. 31, 2000, by the Ministries of Education, Foreign Affairs, and Public Security, art. 36).

15. “Which visa is appropriate to do an internship in China if I have no residence certificate for study?”

In the past, activities permissible with an F visa expressly included “internships lasting less than six months.” (2010 Implementing Rules, art. 4(4)). However, any reference to internships has been deleted from current regulations. Now, under the State Council regulations, art. 6:

F visas are for noncommercial “exchanges, visits, inspections, etc.”

M visas are “commerce or trade.”

The omission of any reference to internships has created a legal ambiguity as to which visa, if any, is appropriate for an internship. A clear statement of policy should be provided by the government to resolve the ambiguity.

One interpretation is that by deleting reference to internships the State Council intended to make that activity impermissible with an M or F visa.

Consistent with this interpretation, a representative of the Ministry of Foreign Affairs (MOFA) told the American Chamber of Commerce-China orally on Nov. 25, 2013, that the Ministry intended to prohibit internships with F or M visas because in the past so-called “internships” were actually employment in disguise for persons who were ineligible for work visas because, for example, they lacked the degree and experience needed for a work visa or they directly competed with recent Chinese graduates for jobs in occupations where there was no labor market shortage. A MOFA representative has also told our firm that they have issued internal written instructions to consulates that M and F visas are not to be issued for purposes of internships.

This interpretation is bolstered by the regulations on internships by X1 students holding residence permits, who are required to get approval by their schools and the PSB Exit-Entry Administration before engaging in an off-campus internships, and who are considered to have engaged in unauthorized employment if they engage in any work beyond the scope authorized. (EEAL, art. 43(3); State Council regs, art. 22). These rules seem to classify an internship as “work” requiring permission to work from the PSB.

A contrary interpretation of the ambiguous regulations is that although the M and F regulations don’t specifically mention internships, they are nonetheless permissible. Buttressing this argument are the 1996 Rules for the Administration of Employment of Foreign Nationals, art. 8 (not specifically repealed by the new State Council regulations), stating that an internship is not work. However, given the weakness of this argument, employers, interns, and third-party referrers (e.g., headhunters and agencies that arrange internships) all should be aware of the legal risks of these arrangements.

Interestingly, in Beijing’s Zhongguancun Science Park, students from overseas universities are allowed to have short-term internships with S2 visas. S2 visas authorize entry for vaguely worded “private affairs.” (State Council regs, art. 6(11)). In particular, according to the Zhongguancun rules, companies that invite foreign higher education students to participate in practical training may file with Beijing public security bureau exit and entry authorities to enable such students to apply with port visa authorities for short-term private affairs visas (annotated “practical training”) in order to enter the country to carry out practical training activities. This local rules opens the door to the possibility that S2 visas may be appropriate for visas in other scenarios as well.

The argument that an internship is permissible may turn on the specific facts. For example, if you undertake an internship for a company abroad, you may have a good argument that you qualify for an M (business) visa to China on an M visa for commercial or trade purposes, where your wages are paid by a foreign company. Or you may be able to come to China on an F visa to volunteer without pay in a community service program.

This topic will remain unsettled until a clear statement of policy is provided by immigration authorities.

PROCEDURES FOR VISA APPLICATIONS ABROAD

16. What are the passport requirements for visa applicants?

The Ministry of Foreign Affairs requires that a visa applicant’s passport be valid for a minimum of 6 months and has blank pages. A minimum of two blank pages are needed for a person applying for a visa abroad who will need to apply for a residence permit in China after entry.

17. Who needs an interview at the Chinese Embassy or other visa issuing agency abroad?

The law states generally that an interview may be required as part of a visa application at a Chinese embassy or other visa issuing agency abroad. (EEAL, art. 18).

The regulations further specify that an interview may be required if:

applying for entry and “residence.” The term residence includes J1, Q1, S1, X1, or Z visas, which require applicants to seek a residence permit within 30 days of entry; the applicant’s identity and the purpose of entry need to be verified; the applicant has been refused entry previously, or has been ordered to depart by a specified date; or there are other circumstances making it necessary to hold an interview.

(State Council regs, art. 8). For some applicants, this requirement represents an additional travel cost.

18. Will visa runs to Hong Kong or a third country be possible?

The statute and State Council regulations are silent on this. As a practical matter, PRC embassies and consulates send mixed messages on this issue. For example:

The Hong Kong Office of the Commissioner of the PRC Ministry of Foreign Affairs states that “Applicants who do not enjoy HK resident status should apply for visas with the Chinese Embassies or Consulates General in their countries of citizenship or residence.” In practice, the Hong Kong Office is not that strict.

The PRC Consulate in New York states, “Applicants who reside or travel away from the country of his or her nationality can apply for visas at a local Chinese Embassy or Consulate.” Along the same lines, the PRC Consulate in Los Angeles states, “If you are not applying for the visa in the country of your citizenship, you must provide the original and photocopy of your valid certificates or visa of stay, residence, employment or student status, or other valid certificates of legal staying provided by the relevant authorities of the country where you are currently staying.”

Our firm checks about current local practices before advising an applicant whether to apply in a country where he or she is not a long-term resident. Also, in our experience, the validity of a visa may be shorter for an applicant not applying in a country where he or she is not a citizen.

19. I am currently in China. Can I mail my visa application to a Chinese Embassy abroad?

No. You have to be in the country where you apply for the visa, at least according to the China Visa Application Service Center. Also note that foreign nationals above age 16 must carry their passports with them while in China. (EEAL, art. 38).

20. How should I understand a visa’s validity, number of entries, and duration of stay?

See How to Understand the Validity, Number of entries and Duration of Stay.

PROCEDURES AT THE PSB EXIT-ENTRY ADMINISTRATION

21. How early must an application for a visa, stay certificate, or residence permit be filed with the Exit-Entry Administration?

Under the statute, a person applying in China to the Exit-Entry Administration to extend a visa would be required to do so 7 days before the stay period shown on the prior visa expired. (Art. 29). Similarly, to extend one’s residence period, a person should apply 30 days before the prior residence certificate expired. (Art 32).

The statute and regulations are silent as to the consequences of filing late. On Oct. 16, 2013, the Beijing PSB stated that although there is now no penalty for filing late, in the future they may issue visas or residence permits with only limited validity to persons who file late.

The Beijing PSB also stated that filing early will not reduce the duration of stay or validity of the new visa or residence permit, which will be counted from when the prior document expires instead of when the new application is filed.

22. How long will adjudication of a visa, stay certificate, or residence permit application at the Exit-Entry Administration take? Is travel possible while the application is pending?

If an application for a visa extension, replacement, reissuance, or stay certificate is complete and appears to be approvable, the Exit-Entry Administration will issue an acceptance notice with a validity period of not more than 7 work days, and will adjudicate the application within that period. (EEAL, art. 29; State Council regs, arts. 13, 36).

Similarly, if an application for an issuance, extension, replacement, or reissuance of a residence certificate is complete and appears to be approvable, the Exit-Entry Administration will issue an acceptance notice with a validity period no more than 15 work days, and adjudicate the application within that period. (EEAL, art. 30; State Council regs, art. 18, 36). Under prior rules, both visa and residence permit applications were adjudicated within 5 work days. (Ministry of Public Security, Foreigner Visa and Residence Permit Operational Criteria, art. 7, doc. no. 30 [2004], issued Jan. 7, 2004, effective Apr. 1, 2004). Some cities are currently routinely taking the full 15 work days (e.g., Beijing, Shenyang), while others are currently processing residence certificates faster (e.g., 7 work days in Shanghai and Guanzhou).

Longer processing times are probably due to the government’s desire to more thoroughly check applicants’ eligibility, such as completing background checks based on applicants’ fingerprints and contacting companies to confirm employment offers.

The Exit-Entry Administration will retain an applicant’s passport while the application is pending. The acceptance notice will serve as evidence that a person is legally in China. (State Council regs, arts. 13, 18). However, the State Council did not incorporate into the final regulations proposals to these receipts valid for purposes such as domestic travel on trains and airplanes as well as for temporary residence registration at hotels and bank transactions. Clearer guidance is needed. A Beijing PSB officer recently told China Daily, the purposes for which the acceptance receipt can be used are currently under review by multiple government agencies, including transportation agencies. On Oct. 17, 2013, Beijing PSB said orally that if an applicant wants to use the acceptance notice for travel, he or she must specifically request that the notice include a scanned photo.

Nor have there been national guidelines put in place for whether the Exit-Entry Administration should expedite adjudication in the event of an emergency. This could cause some inconvenience to both employers and foreigners. A Beijing PSB officer recently told the press that in “special circumstances,” such as “emergencies,” a passport can be temporarily returned to an applicant while an application is pending at PSB. And Beijing has put into place procedures to expedite cases in urgent situations.

23. What’s the maximum length of stay that may be given on a short-term visa extension?

Short-term visas will be issued initially for a maximum duration of stay of 180 days. (EEAL, art. 34; State Council regs, art. 36(4)).

Then, the cumulative time allotted in extensions of stay should not exceed the originally allotted period of stay as shown on the visa. (EEAL, art. 29).

Local rules provide further specifics.

24. Under what circumstances will a short-term visa be extended?

“Reasonable and sufficient” grounds must exist for extending one’s period of stay. (EEAL, art. 29).

Local rules provide further specifics.

25. Under what circumstances will a change from a short-term visa to a residence permit be permitted within China?

The general rule is that a person with a short-term visa, such as an L (tourism), M (business), or F (non-commercial visit) is not eligible to apply to change status to a residence permit within China. Instead, such a person must depart China to apply for a visa designated for intending residents, such as an X1 (long-term student), Z (work), Q1 (family reunion), or S1 (private affairs). In the past, exceptions have been made in “special situations.” See e.g., Rules for the Administration of Employment of Foreign Nationals in China, art. 7; Notice on Curbing Illegal Employment of Foreign Nationals in China.

Under the Exit-Entry Administration Law, persons in China with a short-term visa may apply for a residence permit if they have special talent, are investors, or have humanitarian needs and otherwise conform to State regulations. Application must be made to the exit-entry administration at or above the level of a multi-district city. (Art. 31).

Local policies provide further guidance. For example, under Beijing PSB procedures, to qualify for a residence permit for employment, an applicant who didn’t enter with a Z (work) visa must submit a certification by a Chinese government agency of being a high-level talent or a professional in urgent need in China.

PERMANENT RESIDENCE

26. 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.

Interestingly, Xinhua News Agency quoted 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.

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.

TERMS AND CONDITIONS OF STAY

27. What’s the requirement for “temporary residence registration” with the local police within 24 hours of arrival?

See China: Foreign Nationals Must Register with the Local Police.

28. Are foreign nationals required to carry their passports with them?

Foreign nationals age 16 or above must carry their personal passports or other international travel certificates, or stay or residence certificates with them and allow inspection by public security organs during their stay and residence in China. (EEAL, art. 35). Violators may be subject to a warning or fine of up to RMB 5000. (EEAL, art. 70).

29. What are the restricted areas where foreign nationals are prohibited from entering, living, and working?

Public security and national security organs may prohibit foreign nationals from entering restricted areas and may prohibit foreign nationals and foreign entities from entering establishing residences or offices in certain locations. (EEAL, art. 44).

To enter the Tibet Autonomous Region (TAR), a foreign national must apply for a Tibet Travel Permit. Permits are not always granted. Even when travel to Tibet is allowed, usually only Lhasa and part of Shan Nan are open to foreigners. To enter closed areas, an Alien’s Travel Permit (外国人旅行证) issued by the PSB or military permit may be required.

Violators may be subject to a warning, fine, or detention. (EEAL, art. 77). Written records, audio and video materials, electronic data and other articles acquired by foreign nationals illegally shall be confiscated or destroyed, and foreign nationals’ tools shall be confiscated. (Id.)

MISCELLANEOUS

30. What are the details on the government’s collection of foreigners’ biometric data?

Under the law, applicants for residence certificates “shall” provide biometric data such as fingerprints. (EEAL, art. 30. See also State Council regs, art. 16.). The Beijing PSB stated orally on Oct. 17, 2013, that it doesn’t yet have biometrics equipment in place. The Guangzhou PSB said the same thing on Oct. 25, 2013.

Further, the State Council may approve the Ministries of Public Security and Foreign Affairs’ collection of biometric data from persons leaving or entering the country. (EEAL, art. 7). So far, the State Council hasn’t publicly announced such approval.

31. Should foreigners expect their immigration status will be checked in connection with financial, educational, medical, telecommunications, and other transactions?

An important purpose of the new law was to “strengthen communication and coordination in the control of exit and entry affairs,” including establishing “a uniform exit and entry control information platform to share information among administrative departments” and improving the collection of biometric data. (EEAL arts. 4-5, 7).

The draft State Council regulations specified that police carrying out official business may verify visa and residence status (art. 34) and that employers may verify a foreigner’s identity through the Exit-Entry Administration (art. 43). These requirements were inexplicably dropped in the final regulations.

However, the final regulations do state that “if a finance, education, medical, or telecommunication work unit, etc. in the course of business needs to verify a foreigner’s status, it may apply to the Exit-Entry Administration” (art. 27). It remains to be seen how thoroughly these checks will be carried out and how accurate the results will be.

In addition, in Guangdong Province:

No housing may be rented or provided for free to a foreign national without a valid passport and unexpired visa. (Interim Provisions of Guandgong Province on Administration of and Services to Aliens, art. 17).

No property management service may provide an entrance card, pass, or parking card to a foreign national without a valid residence certificate (居住证件). (Id., art. 20).

No real estate agent may provide services to a foreign national without a valid residence certificate. (Id., art. 22).

32. What whistleblower provisions require reporting on violations of the exit-entry administration regulations?

Work units that employ foreign nationals must report relevant information to local exit-entry administration offices. (EEAL, art. 45). Relevant information includes termination of employment, change in the location of employment, that the foreign national has died or gone missing, or violations of the exit-Entry administration regulations. (State Council regs, art. 26).

Schools that recruit foreign students must report relevant information to local exit-entry administration offices. (EEAL, art. 45). Relevant information includes that the student has graduated, finished a course, dropped out, has left the school, has died or gone missing, or violated exit-entry administration regulations. (State Council regs, art. 26).

If citizens discover the illegal entry, illegal residence, or illegal

employment of foreigners, they should timely report this to local public

security organs. (EEAL, art. 45).

employment of foreigners, they should timely report this to local public security organs. (EEAL, art. 45). In Guangdong Province, a hotel must immediately report to the public security bureau if a guest’s passport or visa expires. (Interim Provisions of Guandgong Province on Administration of and Services to Aliens, art. 14).

In Guangdong Province, a whistleblower may be rewarded for reporting illegal entry, illegal residence, or illegal employment of a foreign national to the public security bureau, the human resources and social security department, and/or state security organs as appropriate. (Interim Provisions of Guandgong Province on Administration of and Services to Aliens, art. 10).

Yes. The general presumption under Chinese law is that regulations do not retroactively void previously granted benefits. (Law on Legislation, art. 84).

34. Can foreign nationals be prohibited from departing China?

A foreign national may not leave the country if he or she, among other things:

1. is subject to a criminal sentence that has not been completed, or is the defendant or suspect in a criminal case (unless the sentenced person is transferred in accordance with the relevant agreements signed between China and another country);

2. is involved in a civil case which has not been closed and the People’s Court has decided that he or she must not leave the country; or

3. has defaulted on the remuneration of labor to workers and the relevant department of the State Council or the people’s government of the province, autonomous region or municipality directly under the Central Government has ordered that he or she shall not leave the country.

(EEAL, art. 28. Cf. 1985 Foreigner EEAL, art. 23).

If you know a dispute is imminent or a case has already been filed where you are a party (or where you are not a party but may be seen as responsible), consider avoiding unnecessary travel to China.

The Supreme People’s Court recently issued a list of 31,259 people–including five from overseas–whose departure has been prohibited due to failure to comply with court-ordered payments and other rulings, according to China Daily.

—-

Thanks to attorney LIU Sen for contributions to this article.