Regulations on the Management of the Employment of Foreigners in China (Revised in 2017)

Transcription

1 Regulations on the Management of the Employment of Foreigners in China (Revised in 2017) RIVER DELTA Issuing authority: Ministry of Human Resources & Social Security Date issued: Effective date: Level of Authority: Departmental Rules Area of law: Foreign Affairs, Trade Unions Contact Us Chapter I General provisions Shanghai Tel: Fax: Add: World Plaza, 14th Floor, Suites E-H, 855 South Pudong Road, Pudong New District, Shanghai Beijing Tel: Fax: Add: Room 4R, Tower A, East Gate Plaza, 9 Dongzhong Street, Dongcheng District, Beijing Suzhou Tel: Fax: Add: Room 1218, Shanglv Plaza, 381 East Suzhou Ave, Suzhou Industrial Park, Suzhou Article 1 These Regulations are hereby formulated in accordance with the stipulations of the relevant laws and regulations to enhance the management of the employment of foreigners in China. Article 2 The term 'foreigners' as used in these Regulations refers to persons are not of Chinese nationality as stipulated in the Nationality Law of the People's Republic of China. The term 'foreign employee working in China' as used in these Regulations refers to the behavior of engaging in social labor and receiving remunerations in accordance with the law by foreigners who have not obtained permits to reside in China. Article 3 These Regulations shall be applicable to foreigners working inside China and entities employing foreigners. These Regulations shall not be applicable to persons enjoying diplomatic prerogatives and exemption, such as those working in foreign embassies and consulates in China, UN representative offices in China, and staff members of other international organizations. Article 4 The labor administrations under the people's governments at the provincial, autonomous regional and municipal level and those at the prefectural level shall take charge of the management of the employment of foreigners in China.

2 Chapter II Employment permission Article 5 Entities that employ foreigners must apply for employment permission for these foreigners and may employ foreigners only after obtaining Certificates of the People's Republic of China Permitting the Employment of Foreigners (hereinafter referred to as certificates of permission). Article 6 The posts which employers decide to fill with foreigners must be those that require special needs and which cannot be filled by domestic candidates for the time being. Moreover, no relevant state regulations may be violated. No entities shall employ foreigners to engage in cultural performances with a business character, except for those conforming to the stipulations of Item 3 of Article 9 of these Regulations. Shenzhen Tel: Fax: Add: Room 1405, Block A, Xintian Century Business Center, Shixia North Street No.2, Futian District, Shenzhen Chengdu Tel: Fax: Add: Room 1806, Block B, Oakes Plaza, 666 Jincheng Avenue, High Tech Zone, Chengdu Ningbo Tel: Fax: Add: Room , Talent Building, No.557 Liuting Road, Haishu District, Ningbo Article 7 Foreigners seeking employment in China must meet the following requirements: 1. Having reached the age of 18 and being in good health. 2. Possessing the professional skills needed for and corresponding work experience in the work. 3. Free from criminal records. 4. Having specific employers. 5. Possessing a valid passport or other international travel documents that can be substituted for a passport (hereinafter referred to as passport substitutes). Article 8 Foreigners seeking employment in China must enter China with Z visas (or in line with the agreements on mutual exemption of visas if such agreements have been reached) and may be employed only after obtaining Work Permits for Foreigners (hereinafter referred to as work permits) and residential documents for foreigners. Foreigners who have not obtained residential documents (namely, those holding, F, L, C, and G visas), foreigners studying or under internship in China, and the family members of foreigners holding Z visas may not be employed in China. In special cases, employers shall apply for certificates of permission according to the examination and approval procedures as stipulated in these Regulations, and the foreigners to be employed must change their status at the public security departments on the strength of these certificates of permission, and obtain work permits and residential documents before they can be employed. The employment of the spouses of the persons in foreign embassies and consulates, in UN organizations, and in the representative offices of other international organizations in China shall be handled according to the Regulations of the Ministry of Foreign Affairs of the People's Republic of China on the Employment of the Spouses of the Persons Working in Foreign Embassies, Foreign Consulates, and UN Organizations in China with the relevant proceedings to be completed in conjunction with the examination and approval procedures as stipulated in Item 2 of this article.

3 Certificates of permission and work permits shall be prepared by the Ministry of Labor in a unified way. Article 9 Foreigners possessing one of the following qualifications may be exempted from certificates of permission and work permits: 1. Foreign experts and management personnel engaged with funds directly from the Central Government or with funds from State departments or institutional entities, foreign experts and management personnel with senior professional titles or certificates of special skills as acknowledged by authoritative technical management departments or trade associations of their home countries or international organizations, and foreigners carrying Foreign Expert Certificates as issued by the Bureau of Foreign Experts. 2. Foreign laborers with Permits for Foreigners to Engage in Offshore Oil Operations in the People's Republic of China who are engaging in offshore oil operations and do not have to land, and who have special skills. 3. Foreigners for art performances of a business character on the strength of Permits for Temporary Performances of a Business Character as approved by the Ministry of Culture. Article 10 Foreigners meeting any of the following requirements may be exempted from obtaining certificates of permission and may directly apply, upon entry into China, for employment permits with Z visas and other relevant certificates: 1. Foreigners who are employed to work in China according to agreements and protocols signed between China and foreign governments or international organizations, or who are employed to implement Sino-foreign cooperative projects or exchange projects. 2. The Chief Representatives and other representatives of the residential offices of foreign enterprises in China. Chapter III Application, examination and approval Tianjin Tel: Fax: Add: Suite G, 5F, TEDA Building, 256 South Jiefang Rd, Hexi District, Tianjin USA Tel: Add: 97 E Brokaw Road, Suite 310, San Jose, CA, USA Article 11 Entities employing foreigners must complete the Application for Employing Foreigners (hereinafter referred to as the Application), and submit those applications to the departments in charge of their respective trades at the same level as the departments in charge of their labor management (hereinafter referred to as departments in charge of respective trades), and present the following valid documents: 1. Resumes of the foreigners to be employed. 2. Letter of employment intent. 3. Explanation of the reasons for the employment. 4. Certificates qualifying the foreigners for the work. 5. Health certificates of the foreigners to be employed. 6. Other documents as required by the laws and regulations. The departments in charge of the respective trades shall carry out an examination

4 and grant approval in line with the stipulations in Article 6 and Article 7 of these Regulations and the other relevant laws and regulations. Article 12 After approval by the departments in charge of the respective trades, the employing entities must complete the verification procedures with the labor administrations at the provincial, autonomous regional and municipal level or with the authorized labor administrations at the prefectural level at their locations with the application forms. The labor administrations at the provincial, autonomous regional, and municipal level or authorized labor administrations at the prefectural level shall appoint special departments (hereinafter referred to as certificate issuing departments) to be specifically in charge of the work of the signing and issuance of certificates. The certificate issuers shall complete the verification according to the opinions put forward by the departments in charge of the respective trades and the supply and demand situation of the labor market, and issue the certificates of permission to employers after the verification. Article 13 Employers at the central level and those with no affiliation to any departments in charge of respective trades may, if they want to employ foreigners, directly file applications and complete the employment permission procedures with the certificate issuing departments of the labor administrations. Foreign-funded joint ventures hoping to employ foreigners do not need to request examination and approval from the departments in charge of respective trades. They may apply for and obtain certificates of permission directly from the certificate issuing departments of the labor administrations with their contracts, articles of association, certificates of approval, business licenses, and the documents specified in Article 11 of these Regulations. Article 14 Those foreigners who have obtained approval to work in China must apply for Z visas at the Chinese Embassies, Consulates and offices with the permits and a valid passport or documents that can be substituted for a passport. Those who are subject to the provisions of Paragraph 2 of article 9 may apply for Z visas with a notice letter issued by China National Offshore Oil Corporation. Those who are subject to the provisions of Paragraph 3 of Article 9 may apply for Z visas with the approved documents from the Ministry of Culture of People's Republic of China. Those who subject to the provisions of Paragraph 1of Article 10 may apply for Z visas with the cooperation and exchange project proposals. Those who are subject to the provisions of Paragraph 2 of Article 10 may apply for Z visas with the registration certificates issued by the administrative departments for industry and commerce. Article 15 The employers must, within 15 days after the employed foreigner crosses the border, sign the employment contract with the employed foreigner who holds his valid passport or documents which can be substituted for a passport as well as the permit to obtain a work permit for a foreign employee from the original certificate issuing departments and complete the Registration

5 Form for Foreign Employment. The work permit shall only be effective in the region prescribed by the authority that makes the issuance. Article 16 Foreigners who already hold work permits must, within 30 days of their entry, go to the social security department to apply for a residence permit. The validity of the residence permit shall be decided in accordance with the validity of work permit. Chapter IV Labor Management Article 17 An employing entity and its foreign employee must, in accordance with the law, conclude a labor contract, the term of which may not exceed five years. The contract may be renewed upon its expiration after the completion of the clearance process in accordance with Article 18 of these Regulations. Article 18 The work permits of employed foreigners shall cease to be effective upon the expiration of the term of the labor contract between the foreigner and his employer. If renewal is required, the employer must, within thirty days priors to the expiration of the contract, submit an application to the labor administrative departments for an extension of employment, and after approval is obtained, proceed to complete the procedures for the extension of the work permit. Article 19 The foreign employee must complete the procedures for the extension or change of his residence certificate at the local public security departments within ten days after obtaining the approval for an extension of his employment in China or the change of his employment location or his employer. Article 20 After the termination of the labor contract between the foreign employee and his employer, the employer shall promptly report it to the labor and public security departments, return the work permit and the residence certificate of the mentioned foreigner, and complete the procedures for his exit from China with the public security departments. Article 21 The salary paid to the foreign employee by the employer may not be lower than the minimum wage standard in the locality. Article 22 The working hours, rest and vacation, work safety and hygiene as well as the social security of foreign employees in China must follow the relevant provisions of the state. Article 23 The employer of the foreign employee in China must be the same as that specified in his Employment License. When a foreigner switches employers within the area designated by the original certificate issuing department but stays in a job of the same nature, the change

6 must be approved by the original certificate issuing departments and recorded on his work permit. If a foreigner is to be employed outside the area designated by the certificate issuing departments or switch employer within original designated area while taking up a job of a different nature, he must complete the procedures for a new Employment License. Article 24 In regard to a foreigner whose residence status has been revoked by the public security departments due to a violation of Chinese law, his labor contract shall be terminated by his employer and his work permit shall be withdrawn by the labor administrative departments. Article 25 Labor disputes that arise between an employer and a foreign employee shall be handled in accordance with the Labor Law of the People's Republic of China and the Law of the People's Republic of China on Mediation and Arbitration of Labor Disputes. Article 26 The labor administrative departments shall conduct an annual inspection of the work permit. Within thirty days prior to the end of every year of employment of a foreigner, the employer must complete the procedures of the annual inspection at the certificate issuing departments of the labor administrative departments. The work permit shall automatically cease to be effective when the deadline has passed. In the event of loss or damage of the work permit during the term of his employment in China, the foreigner must promptly report it to the original certificate issuing department and complete the procedures for the issuance of the work permit. Chapter V Regulations on punishment Article 27 Violations of these Regulations, such as, foreigners who work without a work permit or employers that hire a foreigner without an Employment License, shall be handled by the public security departments in accordance with Article 43 of the Implementing Rules of the Law of the People's Republic of China on the Control of the Entry and Exit of Aliens (Revised in 1994). Article 28 In regard to a foreigner who refuses to have their work permit inspected by the labor administrative authorities, change their employers and professions at will or extend their term of employment without permission, the labor administrative departments shall withdraw their work permits and recommend that their residence status be canceled by the public security departments. In cases of deportation, the costs and expenses shall be paid by the employed foreigners or their employers. Article 29 In regard to foreigners and employers who make up, change, falsely

7 use, transfer, trade the work permit and the Employment License, the labor administrative departments shall take over the work permit and the Employment License, confiscate the illegal proceeds and impose a fine between ten thousand and one hundred thousand RMB Yuan. Serious cases which constitute a crime shall be investigated by the judicial authorities for responsibility. Article 30 In cases of an abuse of power, illegal collection of fees, and fraudulent practices on the part of official personnel of the certificate issuing departments or the related departments, they shall be pursued of their criminal responsibility if the crimes were committed in accordance with the law, or they shall be subject to administrative punishment if the cases do not constitute a crime. Chapter VI Supplementary regulations Article 31 Residents of Taiwan, Hong Kong and Macao working in the mainland of China must follow the Provisions on the Administration of the Employment of Taiwan, Hong Kong, and Macao Residents in the Mainland. Article 32 These Regulations shall not apply to the employment of foreigners in China's Taiwan, Hong Kong, and Macao. Article 33 Individual economic organizations and private citizens shall be prohibited from employing foreigners. Article 34 The labor administrative departments of the provinces, autonomous regions, and municipalities directly under the jurisdiction of the Central Government may formulate their own regulations for the implementation of these Regulations jointly with the public security and relevant authorities in the locality, and report it to the Ministry of Labor, the Ministry of Public Security, the Ministry of Foreign Affairs and the Ministry of Foreign Trade and Economic Cooperation for archival purposes. Article 35 The Ministry of Labor shall be responsible for the interpretation of these Regulations. 1 HR Legal Global 劳动法苑 Article 36 These Regulations shall be implemented as of May 1, 1996, The Provisions Concerning the Employment in China of Foreigners Who Have Not Yet Obtained Residence Certificate and Foreigners Who Study in China as jointly promulgated by the former Ministry of Labor and Personnel and the Ministry of Public Security on October 5, 1987 shall be simultaneously annulled. This article has been prepared for clients of River Delta Law Firm. Whilst every effort has been made to ensure accuracy, this client alert is not an exhaustive treatment of the area of law discussed and no responsibility for any loss occasioned to any person acting or refraining from action as a result of material in this article is accepted by River Delta Law Firm. If more detailed information or other expert assistance is needed, please contact: info@jsjlawyer.com for the services of a competent professional adviser.