Q&A on employment of foreigners in China 2

Published on May 13 2010 by Ting

Lawyer : Lujialiang

1, Q: What category of foreigners do not need to obtain a working permit or an Employment Certificate?

A: (1) Foreign specialist technical or management personnel hired and paid directly by the Chinese government， or foreign specialist technical or management personnel who hold a high-level technical title or credentials in respect of special skills confirmed by an authoritative technical or administrative authority or professional association of their own country or an authoritative international technical or administrative authority or professional association and who are hired and paid for by a state authority or institution， and foreigners who hold a Foreign Expert Certificate issued by the Bureau of Foreign Experts；

(2) Foreign labor service personnel with special skills who hold a Work Certificate for a Foreigner Engaged in Off-Shore Petroleum Business in the People's Republic of China， who are engaged in off-shore petroleum business and do not need to go ashore；

(3) Foreigners who hold a Temporary Permit to Engage in Commercial Performances approved by the Ministry of Culture to carry out artistic performances of a commercial nature.

Persons who conform to （1）hereof shall apply for a work visa on the strength of the letter or telegram of notification of the authorized unit. Persons who conform to（2）hereof shall apply for a work visa on the strength of the letter or telegram of notification issued by the China National Offshore Oil Corporation. Persons who conform to（3）hereof shall apply for a work visa on the strength of the letter or telegram of notification of the foreign affairs office of the People's Government of the relevant province， autonomous region or municipality directly under the central government and the approval document of the Ministry of Culture （issued through the relevant embassy， consulate or consular office abroad）。

2, Q: What category of foreigners do not need to obtain a Permit， and may， after entering the People's Republic of China， directly obtain an Employment Certificate on the strength of the work visa and relevant certification?

A: (1) Foreigners hired to come to China to work on Chinese-foreign co-operative exchange projects pursuant to agreements or treaties between China and the government of a foreign country or an international organization；

(2) The chief representative and the representatives of the resident representative offices in China of foreign enterprises.

Persons who conform to（1）hereof shall apply for a work visa on the strength of the letter or telegram of notification of the authorized unit and the document concerning the co-operative exchange project. Persons who conform to（2）hereof shall apply for a work visa on the strength of the letter or telegram of notification of the authorized unit and evidence of registration of the administration for industry and commerce authority.

3, Q: What procedures should be carried out, if a foreigner changes his or her employment conditions?

A: A foreigner who changes his or her employing unit within the region specified by the Permit Issuing Authority but continues to engage in the original occupation must obtain the approval of the original Permit Issuing Authority and carry out procedures for amendment of his or her Employment Certificate.

A foreigner who leaves the employment region specified by the Permit Issuing Authority or changes his or her employing unit and engages in a different occupation within the specified region must carry out procedures for an employment permit anew.

Within 10 days after extension of the term of employment in China or change in the region or unit of employment of a foreigner has been approved， the foreigner shall proceed to the local public security authority to carry out procedures in respect of extension or amendment of his or her residence documents.

4, Q: Under what circumstances the Employment Certificate will become ineffective?

A: (1) Expired: Within 30 days prior to the end of each full year of employment of a foreigner， the employing unit shall proceed to the Permit Issuing Authority of the labor administration authority to carry out procedures in respect of the annual inspection of the Employment Certificate on behalf of the foreign employee. If this term is exceeded， the Employment Certificate shall automatically become ineffective.

(2) Canceled: If the resident status of a foreigner is revoked by the Chinese public security authorities due to violation of Chinese laws， the employing unit shall rescind the labor contract and the labor authority shall cancel the Employment Certificate.

(3) Recovered: The labor administration authority shall recover the Employment Certificate， and request the public security authorities to rescind the resident status of a foreigner who refuses inspection of his or her Employment Certificate by the labor administration authorities， or changes his or her employing unit or occupation or extends the term of his or her employment without authorization. If a foreigner has to be deported by such authority， deportation expenses shall be borne by the employing unit or by such foreigner.

(4) Confiscated: If a foreigner or an employing unit falsifies， alters， misuses， assigns， buys or sells an Employment Certificate or Permit， the labor administration authority shall confiscate the Employment Certificate or Permit， confiscate the illegal income and impose a fine of not less than RMB 10，000 and not more than RMB 100，000. In serious cases where a criminal offence is constituted， the matter shall be handed over to the judicial authorities， and criminal liability shall be pursued according to law.

5, Q: Is it necessary to sign a labor contract with foreigners hired? Are there any special regulations for this kind of labor contract?

A: Employing units shall enter into labor contracts with foreign employees according to law.

Term of labor contract: The maximum term of the labor contract may not exceed five years.

Renew of labor contract: If an extension is required， the said employing unit shall submit an application for extension of the employment term to the labor administration authority within 30 days prior to the expiration of the original contract and， upon approval， shall carry out procedures for extension of the Employment Certificate.

Dissolution or Termination of labor contract: An employing unit shall promptly report dissolution or termination of the labor contract between a foreign employee and the employing unit to the labor and public security authorities， return the Employment Certificate and residence documents， and proceed to the public security authority to carry out procedures in respect of leaving the People's Republic of China.

Labor disputes: Labor disputes which arise between the employing unit and the foreign employee shall be handled in accordance with the PRC, Labor Law, the PRC, Labor Contract Law and the Law of the PRC on Mediation and Arbitration of Labor Disputes.