The Ministry of Human Resources and Social Security, the Ministry of Foreign Affairs, the Ministry of Public Security, and the Ministry of Culture jointly issued a Notice on the Relevant Formalities for Foreigners Entering China for Completing Short-Term Work Assignment (for Trial Implementation) (“Notice”) on 6 November 2014 which provides for new visa and residence requirements on foreigners entering and staying in China for work for no more than 90 days. The Notice has become effective since 1 January 2015.
Old Requirements
Prior to the implementation of the Notice, a foreigner who stayed in China for work for less than 3 months normally did not need to deal with any employment-related formalities (namely application for employment license, work visa (i.e. Z visa), work permit and residence permit, etc.) unless he/she entered into a labour contract with a PRC employer directly. M visa (for commercial and trade activities) or F visa (for activities such as exchange, visit, study tour and other activities) might be sufficient for this purpose. Now such position has been changed by the Notice and a foreigner may not be able to enjoy the convenience as he/she did before.
New Requirements
The new requirements for a foreigner entering and staying in China for no more than 90 days for completing short-term work assignment under the Notice are summarised in Table 1.
The Notice specifically provides that the circumstances in Table 2 shall not be deemed as short-term work assignment and only M visa or F visa is required if the duration of stay does not exceed 90 days.
Important Points to Note
The Notice substantially changes the requirements and formalities in regard to a foreigner’s entry and stay in China for work for no more than 90 days and more factors need to be taken into account now. When a short-term work arrangement in China is required, the relevant parties including the foreigner, the PRC business partner as well as the overseas employer or business partner of the foreigner shall review the proposed work arrangement carefully such that the parties can deal with the relevant formalities and apply for the appropriate visa in compliance with the Notice.
Quite a lot of steps will need to be attended to in order to apply for the applicable approval documents, Z visa and, if applicable, residence permit. The Notice itself does not specify any timeline for processing such application but it can be expected that the process will be more time and cost consuming than it used to be. When planning the work schedules, sufficient time should be reserved for the application process.
A Proof of Short-term Work Assignment in China is not renewable upon expiration and a foreigner is not allowed to work in China beyond such period. Therefore, it is important to have an accurate estimation of the duration of stay required before taking out an application.
A foreigner from a country with mutual visa waiver agreement with China is also required to obtain a Proof of Short-term Work Assignment in China and Z visa before entering China for completion of short-term work assignment.
A foreigner who works in China for short-term work assignment without completing the formalities required under the Notice or fails to comply with the content of the Proof of Short-term Work Assignment will be deemed as illegally working in China and may be subject to a fine, detention and/or repatriation and may be restrained from entering China for 1 to 5 years from the day of repatriation. On the other hand, the PRC business partner with which the foreigner works may also be regarded as illegally employing foreigner and may be subject to a fine and confiscation of illegal income (if any).
The Notice is new and there are quite a lot of issues requiring further clarification. It is yet to see how it will be interpreted and implemented in different localities within China. However, foreign investors or individuals with need to travel to China on business shall pay close attention to the Notice, its implementation and further development. Legal advice shall be sought if required.
Source: Deacons
