1. Preconditions for foreigners to legally work in China
According to the Rules for the Administration of Employment of Foreigners in China, foreigners' employment with Chinese employers is conditional on obtaining a valid foreigners' work permit.
Moreover, according to the Exit & Entry Administration Law of the PRC, foreign employees should obtain the work-type residence permit issued by the exit & entry authorities allowing them to legally work and stay in China.
Chinese employers must apply for the foreigner's work permit and work-type residence permit in a timely manner before they formally arrange for the foreign employees to work in China. Otherwise, the Chinese employers will be imposed on administrative penalties in an amount of RMB 10,000 per person but not more than RMB 100,000 in total and confiscation of illegal income (if any) if they hire foreigners without obtaining the foreigner's work permit (and the work-type residence permit). Foreigners will be imposed administrative penalties of RMB 5,000 to RMB 20,000 and if the circumstances are severe, they will be detained for a period of 5 to 15 days plus payment of penalties of RMB 5,000 to RMB 20,000, if they are considered illegally working in China.
2. Basic requirements for foreigners to obtain the foreigner's work permit
The foreigners shall satisfy the following requirements for the Chinese foreign experts affairs authorities (hereinafter referred to as "Foreign Experts Bureau" or "Authorities") to issue the foreigner's work permit:
(a) Reaching age of 18 or above, being healthy, having no criminal record, having a definite legal employer in China and having the necessary professional skills or knowledge;
(b) The foreigner falls within the scope of professionals urgently required in China and the work to be performed facilitates China's economic and social development;
(c) Other specific requirements set out by the laws and regulations.
3. General steps for application of the foreigner's work permit
The Chinese employers hiring foreign employees shall initiate the foreigner's work permit application process via the official website of the Foreign Experts Bureau (http://fwp.safea.gov.cn/). They shall submit the application materials online and after the pre-approval is granted, they shall then submit the original application materials on-site at the Authorities.
The general steps of applying for a new foreigner's work permit will be as follows:
(a) The company opens an online company account with the Foreign Experts Bureau, which requires online submission of account-opening application materials and the subsequent on-site submission of original account-opening application materials;
(b) The company applies for the Notification Letter of Foreigner's Work Permit, which is to be issued in an electronic form;
(c) The foreigner applies for Z visa at a Chinese embassy / consulate in his/her home country;
(d) The foreigner goes through health check at a medical institution recognized by Chinese inspection and quarantine authorities (we noted that Authorities from different locations of China indicate those medical institutions recognized by Chinese embassies or consulates at the foreigner's home country would be acceptable. This is recommended to be communicated with local competent Authorities where necessary); alternatively the health check can be done in China after the foreigner enters China;
(e) The company submits the original application materials on-site at the Authorities to apply for the foreigner's work permit after the foreigner enters China.
China government are now tightening up it's control over work visa recent years. The general policy is to "encourage high-end talents, control general work force and restrict low-level work force".
4. Evaluation Criteria for Foreigners Employed in China
According to the Evaluation Criteria for Foreigners Employed in China (trial), Foreigners are classified into three categories, i.e., Class A (foreign high-end talents), Class B (foreign professionals) and Class C (other ordinary staff), based on various elements such as the points system, the current situation in labor market and quota management, etc.
Generally speaking, employees in category A are high-end overseas talents which are encouraged to work in China, they are 1)Selected for the Domestic Talents Programs; 2) Conforming to the international criteria of professional achievement 3) Foreign talents fulfilling the market demand for government-encouraged
posts 4) Innovative and entrepreneurial talents 5) Outstanding young talents 6) Graded 85 points or more in the Points-based System.
As of April 2017, foreigners falling within the category of Class A will not be subject to limitations of age, educational background, working experience, etc, while generally Class B foreigners will be limited to 60 years old. Therefore, Class A foreigners are possible to obtain the foreigner's work permit after 60 years old, actually, we have seen certain Authorities issue the foreigner's work permit on an annual basis for Class A foreigners exceeding 60 years old, regardless of that the valid term of the employment contract is longer than one year.
5. Points-based system
It's a comprehensive evaluation system based on the foreigner worker's professional achievement, income level, Education or vocational skill level, working experience and Chinese level etc.
6. Legal liabilities
In regard to foreigners who refuse 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.
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