Foreigners working in China have always involved various issues. Both employers and foreigners themselves are troubled by the lack of understanding of relevant regulations. As a result, companies dare not use foreigners and foreigners dare not apply for jobs in China. Derived the "three non-foreigners". The type of sharing this time is based on case interpretations, using practical examples to clarify the matters that foreigners need to pay attention to when working in China.

1. Can companies hire foreigners to work at will?

【Introduction to the case】

The Municipal Public Security Bureau received reports from the public that a private enterprise in a county illegally hired foreigners to engage in assembly line work. The case handlers of the Municipal Public Security Bureau immediately investigated Liu, the person in charge of the private enterprise, and found that there were indeed 2 foreigners (holdings held in 2018). Tourist visa entry) was carried out on a construction site. After verification, the two foreigners did not have a foreigner’s work permit in China, and they were illegally employed.

【Investigation and processing】

After investigation and evidence collection, the public security agency determined that the person in charge of the private enterprise had illegally hired foreigners, and imposed administrative punishment on Liu, the person in charge of the private enterprise, in accordance with the third paragraph of Article 80 of the Exit and Entry Administration Law of the People’s Republic of China. 20,000 yuan.

【Legal Analysis】

 Article 41 of the Exit-Entry Administration Law of the People's Republic of China stipulates that foreigners working in China shall obtain work permits and work-type residence certificates in accordance with the regulations. No unit or individual may employ foreigners who have not obtained work permits and work-type residence permits. Article 80: Foreigners who are employed illegally shall be fined not less than 5,000 yuan but not more than 20,000 yuan; if the circumstances are serious, they shall be detained for not less than 5 days but not more than 15 days, and shall be fined not less than 5,000 yuan but not more than 20,000 yuan. Those who introduce illegal employment of foreigners shall be fined 5,000 yuan for each illegal introduction of a person, and the total amount shall not exceed 50,000 yuan; for each illegal introduction, a fine of 5,000 yuan shall be imposed on the unit, and the total amount shall not exceed 100,000 yuan; there is illegal income If the illegal income is confiscated. Those who illegally hire foreigners shall be fined 10,000 yuan for each illegally hired person, and the total amount shall not exceed 100,000 yuan; if there are illegal gains, the illegal gains shall be confiscated.

Article 7 of the Regulations of the People’s Republic of China on the Administration of the Entry and Exit of Foreigners stipulates that when applying for a visa, a foreigner should fill out an application form, submit his passport or other international travel documents, as well as a photo that meets the requirements and relevant materials related to the reason for the application. To apply for an R visa, it shall meet the requirements and requirements for the introduction of foreign high-level talents and urgently-needed specialized talents as determined by the relevant competent authorities of the Chinese government, and submit corresponding certification materials in accordance with the regulations. To apply for a Z visa, a work permit and other supporting materials shall be submitted in accordance with the regulations. Applicants can apply for a work permit in the foreigner's work permit management service system, and apply for a Z visa with the notice of the foreigner's work permit in China, and then obtain the foreigner's work permit in China after entering China. Article 16 provides that when applying for a foreigner’s residence permit, a foreigner shall submit his/her passport or other international travel documents, as well as a photo that meets the regulations, and relevant materials related to the reason for the application. The management agency handles relevant procedures and keeps fingerprints and other biometric information of the human body. For work-type residence certificates, work permits and other supporting materials shall be submitted; for high-level foreign talents required by the state and urgently needed specialized talents, relevant supporting materials, such as invitation letters for foreign high-end talents, shall be submitted in accordance with regulations.

[typical meaning]

Due to China's vast territory, long borders, and steady economic growth, it has attracted some foreigners to work in China in recent years. Is this all legal?

Foreigners who want to work in China must complete the following procedures: After the foreigner establishes a labor relationship with the employer in China, the employer shall apply for the "Notice of Foreigner's Work Permit to China" and the "Notice of Foreigner's Work Permit to China" Apply for a work visa at the Chinese Embassy in your home country. After entering China with the work visa, the employer will apply for the "Work Permit for Foreigners in China" and apply for the residence permit with the "Work Permit for Foreigners in China" to the public security department. Only after the above procedures are completed, can you go to work in employers that are qualified to hire foreigners. However, some employers take risks because of weak legal awareness or coveting cheap foreign labor, and they end up making their own bitter fruits.

 2. Can foreigners change jobs at will when they come to China for employment?

XX Educational Institution hired a Ukrainian in October 2018 and applied for the "Permit for Employment of Foreigners in China". In 2020, the Ukrainian decided to move to another educational institution due to his unsuccessful proposal to increase his treatment. After the original unit and the Ukrainian have terminated the labor contract, the Ukrainian has already started working in the new unit without providing the foreigner’s work permit cancellation form and resignation certificate. Is this illegal?

【Investigation and processing】

Foreigners working in China have their particularities. Foreigners should obtain a "Work Permit for Foreigners in China" during their employment in China. If they need to change their work units, they need to cancel their original work permits, and then the new unit will be the subject of the application. , Provide the “Certificate of Resignation from the Original Entity” and the Cancellation Form of the “Work Permit for Foreigners in China” to apply for a new work permit, and foreigners can only be employed in the entity indicated on the work permit. Therefore, the Ukrainian national's behavior to work in the new unit with the work permit of the original unit has constituted a violation of the law.

【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 employer is terminated, the employer shall promptly report to the labor and public security departments and return the foreigner’s employment certificate (ie Work permits for foreigners to come to China, the same below) and residence permits, and go through exit formalities at the public security organs.

Article 23 stipulates that the employer of foreigners in China must be consistent with the employer indicated on the employment certificate. Foreigners who change their employer within the area specified by the permit-issuing authority but still engage in the original occupation must obtain the approval of the original permit-issuing authority and go through the procedures for changing the employment permit. Foreigners who leave the area specified by the development permit authority for employment or change the employer within the originally specified area and engage in different occupations must go through the employment permit procedures again.

Article 44 of the “Implementation Rules of the Law of the People’s Republic of China on the Administration of the Entry and Exit of Aliens” stipulates that foreigners who seek employment without the approval of the Ministry of Labor of the People’s Republic of China or its authorized departments may terminate their posts or employment at the same time A fine of less than 1,000 yuan shall be imposed; if the circumstances are serious, the person shall also be imposed a time limit for leaving the country. Units and individuals that privately employ foreigners may, at the same time as terminating their employment, impose a fine of not less than 5,000 yuan but not more than 50,000 yuan, and be ordered to bear all the expenses of repatriating foreigners who are employed privately.

 [typical meaning]

The "Regulations on the Administration of Employment of Foreigners in China" stipulate that the employer of a foreigner in China must be the same as the one indicated on the employment certificate. If the foreigner changes the employer within the area specified by the issuing authority but still engages in the original occupation , Must be approved by the original issuing authority and go through the procedures for changing the employment permit. Therefore, after the change of the work unit of foreign personnel in China, the work permit of the original unit must be cancelled in time, and the work permit of the new unit must be obtained before working in the new unit, otherwise it will constitute a violation of the law. If you change the employer and do not engage in the original occupation, you need to go through the employment permit procedures again.

3. Matters needing attention in work permit for foreigners

 The success or failure of foreigners’ work permit applications should be paid special attention to the following points, including corporate and personal aspects.

 [Enterprise aspect] 

1. The enterprise must be established in accordance with the law, have actual business premises, pay taxes in accordance with the law, pay social insurance, and have no record of major violations of law or dishonesty. Employment of foreigners in positions with special needs shall provide industry licenses in accordance with the law, and shall not violate relevant national regulations. The wages for hiring foreigners shall not be lower than the local minimum wage standard, and foreigners who are legally employed are protected by the labor law. 

2. If the provisions of laws and regulations are approved in advance by the competent authorities of the industry, they shall be approved, and the enterprise shall not declare indiscriminately. For foreigners who do not meet the requirements, the enterprise shall not apply for work permits for them.

 [personal aspect]

 1. Foreign applicants must be 18 years of age or older, be healthy and free of infectious diseases, have no criminal record in China or abroad, have a domestically-determined employer, and have the professional skills or knowledge required for the job.

2. For general work, a bachelor degree or above is required, and 2 years or more of relevant work experience after graduation is required to meet the development needs of China's talents and labor market.

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