Foreigners working in China, the following forms are illegal!

Foreigners working in China, the following forms are illegal!

Today, I share the analysis of problems from other official channels again. This time, it is about the policy information of foreigners working in China. Foreigners working in China have always involved various problems. Both employers and foreigners themselves are puzzled by the lack of understanding of the relevant regulations, which leads to enterprises not daring to use foreigners and foreigners not daring to apply for jobs in China, resulting in the "three non-foreigners". So the editor thinks it is necessary to share this kind of information with you again. This time, the type of sharing is to explain the case, and point out the matters that foreigners need to pay attention to when working in China through practical examples.

Work and residence of foreigners

1、 Can enterprises hire foreigners at will？

[Brief introduction of the case]

The municipal public security bureau received a report from the public that a private enterprise in a county illegally hired foreigners to work on the assembly line. The case handlers of the municipal public security bureau immediately investigated Liu, the head of the private enterprise, and found that there were indeed two foreign personnel (who entered the country with tourist visas in 2018) working on the construction site. After verification, the two foreign personnel did not have a work permit for foreigners to work in China, which was illegal employment.

[Investigation and handling]

After investigation and evidence collection, the public security organ determined that the person in charge of the private enterprise engaged in illegal employment of foreigners, and imposed an administrative penalty of 20000 yuan on the person in charge of the private enterprise according to Article 80, paragraph 3, of the Law of the People's Republic of China on the Administration of Exit and Entry.

[Legal analysis]

Article 41 of the Exit and Entry Administration Law of the People's Republic of China stipulates that foreigners who work in China shall obtain work permits and work-related residence certificates in accordance with regulations. No unit or individual may employ foreigners who have not obtained work permits and work-related residence certificates. Article 80 Aliens who illegally obtain employment shall be fined not less than 5000 yuan but not more than 20000 yuan; If the circumstances are serious, he shall be detained for not less than five days but not more than 15 days and shall also be fined not less than 5000 yuan but not more than 20000 yuan. In case of introducing foreigners for illegal employment, the individual shall be fined 5000 yuan for each illegal introduction and the total amount shall not exceed 50000 yuan; The unit shall be fined 5000 yuan for each person illegally introduced, and the total amount shall not exceed 100000 yuan; The illegal gains, if any, shall be confiscated. Illegal employment of foreigners shall be subject to a fine of 10000 yuan for each illegal employment, and the total amount shall not exceed 100000 yuan; The illegal gains, if any, shall be confiscated.

Article 7 of the Regulations of the People's Republic of China on the Administration of the Entry and Exit of Aliens stipulates that aliens who apply for visas should fill in the application form, submit their passports or other international travel documents, as well as photos that meet the requirements and relevant materials for the application. The application for Visa R shall meet the conditions and requirements for the introduction of foreign high-level talents and urgently needed specialized talents determined by the relevant competent departments of the Chinese government, and shall submit the corresponding supporting materials in accordance with the regulations. When applying for Visa Z, the applicant shall submit work permit and other supporting materials in accordance with regulations. The applicant can apply for a work permit in the Foreigner's Work Permit Management Service System in China, apply for Visa Z with the Foreigner's Work Permit Notice in China, and then obtain the Foreigner's Work Permit in China after entering the country. Article 16 stipulates that aliens who apply for aliens' residence certificates shall submit their passports or other international travel documents, as well as the photos and relevant materials that meet the requirements, and go through the relevant procedures at the entry-exit administrative agency of the public security organ of the local people's government at or above the county level in the place of residence, and retain the fingerprint and other human biometric information. Work permit and other supporting materials shall be submitted for work residence permit; For foreign high-level talents that are needed by the country and in urgent need of specialized talents, relevant supporting materials, such as invitation letters for foreign high-end talents, shall be submitted in accordance with the regulations.

[Typical significance]

Because of China's vast territory, long border line and stable economic growth, it has attracted some foreigners to work in China in recent years. Is this legal?

Foreigners who want to work in China must complete the following procedures: after the establishment of labor relations between foreigners and Chinese employers, the employing unit shall apply for the Notice of Foreigners' Work Permit in China for them, and apply for work visas at the Chinese Embassy in China with the Notice of Foreigners' Work Permit in China. After entering China with work visas, the employing unit shall apply for the Foreigners' Work Permit in China for them, Apply for a residence permit at the public security department with the Alien Work Permit in China. After the above procedures are completed, you can go to work in an employer with the qualification to hire foreigners. However, some employers took risks because of their weak legal awareness or their greed for cheap foreign labor, and eventually suffered from their own mistakes.

Foreigner Work Permit

2、 Can foreigners change jobs in China at will

[Brief introduction of the case]

XX（someone） educational institution hired a Ukrainian in October 2018 and handled the "Employment Permit for Foreigners in China". In 2020, the Ukrainian decided to move to another educational institution due to the failure of raising the treatment. After the termination of the labor contract between the former unit and the Ukrainian, the Ukrainian has already started to work in the new unit without providing the cancellation form of the foreigner's work permit in China and the resignation certificate. Is this illegal?

[Investigation and handling]

Foreigners' employment in China has its particularity. Foreigners should obtain "Foreigners' Work Permit in China" during their employment in China. When they need to change their work units, they need to cancel the original work permit first, and then the new unit as the application subject, provide the "Resignation Certificate of the original unit" and the "Foreigners' Work Permit in China" cancellation form to handle the new work permit, Foreigners can only be employed in the units indicated on the work permit. Therefore, the Ukrainian's behavior of working in the new unit with the work permit of the original unit has become illegal.

[Legal analysis]

Article 20 of the Regulations on the Administration of Employment of Foreigners in China stipulates that after the employment contract between the employed foreigner and the employing unit is terminated, the employing unit shall promptly report to the labor and public security departments, return the foreigner's employment permit (i.e. the foreigner's work permit in China, the same below) and residence certificate, and go through the exit formalities at the public security organ.

Article 23 stipulates that the employing units of foreigners employed in China must be consistent with the units indicated in their employment certificates. Foreigners who change their employers within the area specified by the issuing authority but still engage in the original occupation must obtain the approval of the original issuing authority and go through the formalities for changing the employment permit. Foreigners who leave the area specified by the license issuing authority for employment or change their employers and engage in different occupations in the area originally specified must go through the employment permit formalities again.

Article 44 of the Detailed Rules for the Implementation of the Law of the People's Republic of China on the Administration of the Entry and Exit of Aliens stipulates that aliens who seek employment without the approval of the Ministry of Labor of the People's Republic of China or its authorized department may be fined not more than 1000 yuan while terminating their employment or employment; If the circumstances are serious, they shall also be ordered to leave the country within a time limit. Units and individuals that employ foreigners without permission may be fined not less than 5000 yuan but not more than 50000 yuan at the same time as terminating their employment, and shall be ordered to bear all the expenses for the repatriation of the privately employed foreigners.

[Typical significance]

The Regulations on the Administration of Employment of Foreigners in China stipulates that the employing units of foreigners in China must be consistent with the units indicated in their employment certificates. Foreigners who change their employing units within the area specified by the issuing authority but still engage in their original occupation must obtain the approval of the original issuing authority and go through the procedures for changing their employment certificates. Therefore, after the change of the work unit in China, the foreign personnel need to cancel the work permit of the original unit in time, and then work in the new unit after handling the work permit of the new unit, otherwise it will be illegal. If the employer changes and does not engage in the original occupation, the employment permit formalities shall be handled again.

Foreigner Work Permit

3、 Precautions for Foreigners' Work Permit

The following points should be paid special attention to whether the application for work permit of foreigners is successful or not, including enterprise and individual aspects.

[Enterprise aspect] 1. The enterprise must be established in accordance with the law, have actual business premises, pay taxes according to law, pay social insurance, and have no record of major violations of law and breach of trust. If the position of employing foreigners has special needs, it is required to provide the industry license according to law, and it is not allowed to violate the relevant provisions of the state. The wages of foreigners employed shall not be lower than the local minimum wage standard. Foreigners legally employed shall be protected by the labor law. 2. If the provisions of laws and regulations are approved in advance by the competent department of the industry, the approval shall be obtained, and the enterprise shall not apply for work permits for unqualified foreigners.

[Personal aspects]

1. The foreign applicant must be at least 18 years old, healthy and free from infectious diseases, have no criminal record inside and outside China, have a domestic determined employer, and have the professional skills or adaptive knowledge required for the job.

2. For general jobs, the education background should reach Bachelor or above, and have relevant work experience of 2 years or more after graduation, which meets the development needs of China's talent and labor market.

3. Where laws and regulations provide otherwise for foreigners to work in China, such provisions shall prevail.