By Gary Chodorow, LawAndBorder.com
On June 30 the National People’s Congress Standing Committee enacted a
new Exit-Entry Administration Law. This is the first overhall of
China’s immigration law since 1986.
Xinhua News Agency reports that
the overriding policy behind the law is to create harsher punishments
for foreigners who illegally enter, live, or work in China.
The new law won’t take effect until July 1, 2013.
Here are my (very) preliminary impressions.
KEY PROVISIONS
Employer Sanctions: Employers may be fined 10,000 yuan
($1,574) for every foreigner illegally employed, up to a maximum of
100,000 yuan. Any monetary gain resulting from such employment will also
be confiscated.
Residence Certificates: Foreigners’ work-related
residence certificates will be valid for a minimum of 90 days and a
maximum of five years. Non-work-related residence certificates will
be valid for a minimum of 180 days and a maximum of five years.
Biometric Data: Foreigners applying for residence
certificates must provide to the public security bureau (PSB) their
fingerprints and “other biometric data.” In addition, the PSB and
Ministry of Foreign Affairs may, with the State Council’s approval,
promulgate regulations to collect such biometric data from persons
exiting and entering the country.
Fines and Detention for Illegal Stay: Foreigners who
illegally stay in the country may be given a warning before being
fined. In severe cases, they will be fined no more than 10,000 yuan or
detained for five to 15 days.
Voluntary Departure and Deportation: Foreigners who
have violate China’s laws and regulations and are deemed “unsuitable” to
stay will be given an exit deadline to depart voluntarily. Foreigners
who commit “severe violations” that do not constitute crimes may be
deported and not allowed to enter the country again for 10 years.
“Talent Introduction” Visa Category: The law for the
fist time allows visas to be granted to foreign “talent,” but leaves
further details to be set by agency regulations.
Green Cards: The law enshrines the current practice
of granting permanent residence to foreigners. But the law remains at
the highest level of generality, allowing permanent residence to be
granted to foreigners who make “outstanding contributions” to China or
“otherwise meet the requirements” for permanent residence as set by
agency regulations. The law sets no targets or quotas for the number of
green cards to be granted. By the end of 2011, just 4,752 foreigners had
been granted green cards nationwide.
Restrictions on Residence and Work Locations of Foreigners: The
Public Security Bureau and national security organs may restrict
foreigners and foreign entities from establishing residences or
workplaces in certain locations, if required for national security or
public security. If already established, they may be given deadlines to
relocate.
Refugees: For the first time, China’s domestic law
reflects its obligations under the 1951 Refugee Convention and 1967
Protocol Relating to the Status of Refugees. Persons may apply for
refugee status and remain in the country while being screened.
Reporting and Whistleblowing: Units or personnel
employing foreigners or enrolling foreign students should report
employment information to local police departments. Meanwhile, citizens
are encouraged to “report clues” regarding foreigners who may be
illegally living or working in China.
THE NPC'S DELIBERATIONS
The draft law had three readings before the NPC since December 2011.
Yang Huanning, Vice-minister of Public Security reported to the NPC
in April 2012 that the number of foreigners entering China “has been
increasing by 10 percent annually since 2000.” He said that the number
of foreigners employed in China rose from 74,000 in 2000 to 220,000 by
the end of 2011, with many working as employees of foreign companies,
teachers or representatives of foreign organizations.
The previous law had failed to keep up with the rising trend of
immigration. In particular, records systems are outdated. At present,
the Ministry of Foreign Affairs is responsible for issuing visas. A
foreigner’s information is then archived in different ministry’s files
according to the purpose of a person’s visit. As a result, the current
system is spread out across a number of agencies, making enforcement of
visa regulations a difficult task.
One particular problem the new law tries to tackle, according to the Associated Press, is
that for at least a decade, foreigners on short-term visas have managed
to live and work in China for extended periods of time by dashing to
the border and renewing their temporary permits, such as tourist visas,
repeatedly.
Another problem the law addresses is companies that issue fake
certificates or invitation letters to used by foreigners to obtain work
visas on false pretenses. Such companies may be fined under the law.
Vice-minister Yang also reported that establishment of detention
facilities for foreigners who have illegally entered or are illegally
working in China is currently under consideration.
We’ll make available further details as our firm further analyzes the law and as the government begins to implement it.
RESOURCES
* Text of the law (Chinese)
* NPC’s webpage on the law (Chinese)
* State Council’s Report to the NPC on Its Work Related to Foreigners’ Entry and Exit, Residence, Employment (April 2012) (Chinese)
* New Law Targets Foreigners’ Illegal Presence, Xinhua News Agency, June 30, 2012
* Stuart Wiggin, Straightening Out the Country’s Immigration Laws, CRI English, June 29, 2012
* New China Law Targets Foreigners Working Illegally, AP, June 30, 2012
* Zhao Yinan, Legal Status for Seekers of Asylum, China Daily, July 2, 2012
* Xuyang Jingjing, Foreigners Flouting Laws Face Harsher Punishments, Global Times, July 2, 2012
This post first appeared on LawAndBorder.com
and has been published here with the kind permission of the author.
Gary Chodorow is a US immigration lawyer and chief representative for Frederick W. Hong Law Offices in Beijing.
