Handling Procedures Related to Entry of Foreigners for Short-term Work Tasks in China
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
On January 1, 2015, Handling Procedures Related to Entry of Foreigners for Short-term Work Tasks (for Trial Implementation) (the “Procedures”) took effect. The Procedures provide guidelines for implementing the 90-day work permit rule under China’s new exit-entry law and regulations. The Procedures define “short-term work” and clarify the visa, work permit and residence permit application requirements and procedures for foreign nationals entering China for short-term employment purposes.
Work Permit Requirements for Short-Term Work
Under the Procedures, foreign nationals who intend to participate in the following activities in China for up to 90 days are also required to apply for a work permit:
Visiting a cooperating partner in China to complete work in connection with technology, scientific research, management and provision of guidance;
Physical training in a sports agency (applicable to coaches and athletes);
Shooting a film (including commercials and documentaries);
Participating in a fashion show (applicable to runway or print models);
Participating in a foreign commercial performance; and
Other activities specified by the labor administration authority.
In addition, the Procedures also require the foreign nationals to apply for a work permit to undertake the following short-term work if they intend to stay for over 90 days per entry:
Providing maintenance, assembly, testing, taking apart, guidance or training for purchased equipment or machines;
Providing guidance, supervision or inspection of a project that won a bid;
Short-term assignment to a subsidiary, branch office, or rep office;
Participating in sports events held in China (applicable to athletes, coaches, team doctors and assistants);
Volunteers without pay or paid by overseas organizations; or
Making performances that are not defined as “foreign related commercial performance” in China.
Foreign nationals entering to participate in the above listed events for fewer than 90 days are exempt from the work permit requirement, and can enter on an M visa (for the first four types of activities) or an F visa (for volunteers and performers).
A major impact of the Procedures is on foreign nationals coming to China temporarily to perform contracts with a Chinese entity. Before the Procedures, generally foreign nationals could enter with a business visa for visits of 90 days or less. A work permit was only required for visits longer than 90 days. Under the Procedures, foreign nationals visiting a Chinese entity for fewer than 90 days to complete work in connection with a contract are required to obtain work authorization, unless the purpose of their visit falls within one of the exemptions listed above. As these Procedures are implemented we will learn more about how the government will handle cases that fall within a “gray area”, where it isn’t entirely clear whether or not an exemption applies. Our advice, for now, is to err on the side of caution and obtain a work permit to avoid difficulties that could compromise a project.
Work Permit Application
The Procedures also clarify the application process and document requirements for the short-term work permit applications. For foreign nationals whose working period is no more than 30 days, an employment license and “Approval for Short-Term Employment for Foreigners Working in P.R. China” (the “Approval”), and a Z visa need to be obtained. The hosting entity needs to first apply for the employment license and the Approval at the local labor bureau, and then apply for a Z visa invitation letter. The foreign nationals must then apply for a Z visa to enter China. They will receive a Z visa for 30 days with a note, “Allowed to work only within the period of time indicated in the approval.”
For those whose engagements are more than 30 days, there is one more step. After the above stated steps, they will receive Z visas with a note to apply for 90-day resident permits upon entry. They need to obtain the resident permits accordingly.
The Procedures also provided detailed work permit requirements for participants of sports events in China and participants in performances not categorized as foreign commercial performances by the culture authority.
Foreign nationals entering China for short-term employment cannot remain in China beyond the period noted in their approval of short-term employment, and the Approval cannot be renewed unless they intend to be employed by a Chinese entity during their stay.
There are still open issues to be further clarified by the Chinese government authorities. Employers should pay close attention to the development of the implementation of the Procedures regarding these issues.