Should I stay or should I go?

How to comply with China’s new visa laws.

On 1st July, 2013, the new PRC Entry/Exit Administration Law entered into effect, supplemented by the Foreigners’ Entry/Exit Administration Regulations. It demonstrates the government’s commitment to cracking down on people living and working illegally in the People’s Republic of China (PRC). Below, Ralph Koppitz from Taylor Wessing outlines some of the key features of the revised legislation that came into effect on 1st September, 2013, which applies to all foreigners working, studying or otherwise staying in Mainland China.

sign-44033Key deadlines

Foreigners in the PRC should be aware of the following important deadlines:

  • As before, within 24 hours of arrival in the PRC, foreigners must register with the local police station (except if they reside in a hotel, where this will be taken care of by hotel staff).
  • A request for a visa extension needs to be filed a minimum of seven days before the visa expires.
  • Within 30 days of entry into the PRC, based on a valid visa, an application for a related residence permit must be filed.
  • Within 30 days of the residence permit expiring, an extension for the residence permit must be filed.
  • Within 60 days of their birth, the procedures for residence permits for PRC-born foreign children need to be carried out.

To avoid unnecessary hassles, all foreigners over 16 years of age should be aware of the statutory requirement to carry their passports with them at all times during their stay in the PRC. If this is difficult in practice, one should at least carry a copy of the passport and visa/residence permit.

Increased penalties

The legal liabilities for both visiting foreigners and employers, or persons extending an invitation to visitors to the PRC, have been increased as a deterrent. For example, illegal residency can lead to:

  • Fines of CNY 500 per day (up to a maximum of CNY 10,000) for the individual or;
  • Police detention up to 15 days.

Illegal employment (e.g. entering on a commercial M-visa, but actually carrying out work in the PRC) may lead to:

  • Fines of up to CNY 20,000 and police detention up to 15 days;
  • The option of a repatriation order being issued to the individual;
  • Fines of CNY 10,000 per person up to a limit of CNY 100,000, and confiscation of the employer’s illegal income.

Fines and other sanctions are also stipulated in case of other violations, such as individuals or companies issuing false invitation letters. Ultimately, the foreigner may face:

  • An exit order (the mildest form of exit);
  • A repatriation order (where re-entry will be prohibited for one to five years);
  • A deportation order (where re-entry will be prohibited for 10 years).

New visa types

The number of visa types has been increased from eight to 12. Generally, single entry visas are valid for three months, double entry visas for three to six months, and multiple entry visas for either six or 12 months after issue. Below, we only look at the most common visa types:

New M-visa for business trips

The newly created M-visa is applicable in many of the cases previously covered by the F-visa. The M-visa can be issued upon invitation for commercial and trade activities. Multiple entries are possible for six or 12 months if an M-visa was obtained more than twice in the last two years; an old F-visa granted before 1st September, 2013, also counts for this purpose.

The inviting party is usually the trade partner, but could also be a trade fair, for example. Helpful details on the requirements for invitation letters, and the forms themselves, are provided on the websites of the Chinese Visa Application Service Centres.

F-visa only for non-business trips

The application scope for F-visas has been substantially reduced. It only covers non-commercial trips, upon invitation, for exchanges, visits, study tours and “other activities”.

New S1- and S2-visas

The S1- and S2-visas apply to spouses, parents and children (under 18 years of age) of foreigners who have obtained a residence permit due to work, study or otherwise, as well as for stays for personal reasons. Stays of up to 180 days require only the less complicated S2-visa; longer stays require an S1-visa and a valid residence permit.

New R-visa for foreign talents

In the case where a foreigner meets the “determined criteria” for a high-level qualified talent, or possesses skills urgently needed by the PRC, he/she can apply for an R-visa. The law authorises relevant government authorities to publish a guidance catalogue detailing the needs of the PRC’s economic and social development. It is expected that this catalogue (to be revised from time to time) will play an important role in determining which type of skills will allow application for an R-visa. Details remain to be seen.

New X2- student visa for foreign interns?

As with the S1- and S2-visas, the correct visa type for students depends on the intended length of stay: Stays of up to 180 days require only the less complicated X2-visa type, whereas longer stays require an X1-visa type plus a valid residence permit. An admission notice issued, for example, by a PRC university is also required. Additional regulations are expected to be issued by the Ministry of Education.

Oral information from local entry/exit administrations indicate that in the future the X2-visa may also be used for persons wishing to spend up to 180 days in the PRC as an unpaid intern. However, the wording used in relevant regulations is not clear.

At the time of writing, no written confirmation of this understanding was available. In practice, an X2-visa would make sense for newly arriving interns: the regulations have clarified that students who already study in the PRC based on a long-term X1-visa plus a related residence permit, may carry out off-campus jobs if they obtain valid written permission from the authorities where their residence permit was issued.

Z-visa for work in the PRC unchanged, but revisions for related residence permits

The rules for work-related stays remain largely unchanged. Prior to obtaining a Z-visa required for entering the PRC for work purposes, an employment license and a Z-visa notice (an invitation letter issued by the relevant PRC authority) must be obtained. It is important to note that:

  • After entering the PRC on the strength of the Z-visa, a 30-day deadline applies, during which the foreigner must:

(i) obtain a temporary residence permit;

(ii) do his/her health check (if the residence permit is valid for more than one year);

(iii) obtain a work permit; and

(iv) apply for a residence permit.

  • Since July 2013, the processing time for the residence permit has been increased to 15 working days, which needs to be taken into account when making international travel plans (the foreigner’s passport will remain with the authority during application for residency);
  • The minimum duration of a work-related residence permit has been shortened to 90 days (previously it was one year). The residence permit can be granted for a period up to five years. This means that a foreigner now can and thus should obtain a Z-visa (plus residence permit) for any work-related stay in the PRC of more than 90 days. In such cases an M-visa is not a legally safe alternative.

Non-work related residence permits

The minimum duration for non work-related, long-term residence permits (e.g. for study, or for visiting of relatives residing in China) is 180 days, with a maximum duration of five years.

Ralph Vigo Koppitz is a partner and chief representative of Taylor Wessing in Shanghai. He also heads the firm’s PRC employment law practice. Taylor Wessing is a full service law firm with approximately 900 lawyers in Europe, Middle East and Asia, with offices in Shanghai and Beijing.