China: New Law to Toughen Enforcement Against Unlawful Entry, Stay and Work
The legislation will increase penalties for noncompliance and introduce new compliance duties for employers and individuals, effective July 1, 2013. Immigration authorities are expected to increase enforcement under existing laws before the new law is implemented.
China’s highest legislative body, the National People’s Congress Standing Committee, passed legislation on June 30 that will increase penalties against employers and foreign employees for unlawful entry, stay and work beginning July 1, 2013. It will also introduce a new visa category for highly talented foreign workers, new biometric entry and exit requirements, and a centralized permanent residence program.
The legislation was passed as immigration authorities in several major cities, including Beijing, conducted immigration audits. Stricter enforcement under current law is expected in the coming year before the new legislation takes effect.
Tougher Enforcement Mechanisms
The new law will incorporate Chinese employment law standards into the country’s immigration framework. The immigration law will define unlawful employment as (1) working without a valid work permit and residence permit; (2) working outside the location or scope of responsibilities stated in a work permit; or (3) working outside the scope of a student permit (in some cases, student permit holders may be authorized to engage in part-time work).
Monetary penalties for unlawful employment will increase sharply for sponsoring companies and foreign employees alike. Employers will be fined RMB 10,000 for every unlawful foreign worker, up to a maximum of RMB 100,000. Currently, the maximum fine for employers is RMB 50,000. Employers may also be required to forfeit any monetary gain resulting from the unlawful employment of foreign workers.
Foreign nationals who work without authorization will be fined up to RMB 20,000, up from the current maximum of RMB 1,000. In severe cases, foreign nationals working illegally may also be detained for up to 15 days.
The new law also places more responsibility for compliance on entities sponsoring foreign workers. Employers must report suspected noncompliance with entry, stay or work requirements to local police departments. Employers that are found to have falsified information or documents submitted with immigration applications, including company invitation letters, will face penalties ranging from RMB 10,000 to RMB 50,000.
Foreign nationals entering China will be required to register their accommodations within 24 hours nationwide. Currently, the registration window is 24 or 72 hours, depending on the foreign national’s location. China requires all foreign nationals, including business visitors, to register their accommodations at the local police station, though those staying in a hotel or other public lodging may typically complete the registration process there.
New Entry and Exit Procedures
The legislation consolidates entry and exit requirements for Chinese and foreign nationals, which are currently administered under two separate statutes.
The new law empowers the Public Security Bureau and immigration officers at ports of entry to question, investigate and detain foreign nationals who are suspected of breaching Chinese immigration requirements. It also authorizes the creation of a uniform exit and entry information management system to enhance information sharing between the Public Security Bureaus, Chinese diplomatic posts and other relevant government agencies.
Under the new legislation, foreign nationals entering or leaving China may be required to undergo fingerprinting and collection of other biometric data at immigration checkpoints. Additional details on the biometric data capture mechanism are expected to be developed and released closer to the 2013 implementation date.
Visa Category for Highly Talented Foreign Nationals
The legislation will introduce a new Talent Introduction visa category in an effort to attract high-caliber talented foreign nationals from overseas to work and live in China. The legislation does not specify eligibility criteria or implementation details for the new category. Additional information is expected at a later date.
Permanent Residence Program
The legislation will allow foreign nationals who make outstanding contributions to China’s economic and social development or who meet existing permanent residence requirements to apply for permanent residence status directly to the Ministry of Public Security. Implementation details for the new program are expected in the future. Currently, China offers permanent residence on a trial basis, and applications are submitted to local Public Security Bureaus.
This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen Global or send an email to CNInitiations@fragomen.com.
Source: Fragomen