Rules for the Administration of Employment of Foreigners in
China
(Promulgated jointly by the Ministry of Labour, Ministry
of Public Security, Ministry of Foreign Affairs and the Ministry of Foreign
Trade and Economic Cooperation of the People's Republic of China on 22 January,
1996)
Chapter I General Provisions
Article 1 These Rules are
formulated in accordance with the provisions of the relevant laws and decrees
for the purpose of strengthening the administration of employment of foreigners
in China.
Article 2 The term "foreigners" in these Rules refers to the
persons, who under the Nationality Law of the People's Republic of China, do not
have Chinese nationality.
The term "employment of foreigners in China" in
these Rules refers to acts of foreigners without permanent residence status to
engage in remunerative work within Chinese territory in accordance with it
laws.
Article 3 These Rules shall apply to employed foreigners within
Chinese territory and their employers.
These Rules shall not apply to
foreigner who enjoy diplomatic privileges and immunities employed by foreign
embassies or consulates, or the offices of the United Nations and other
international organizations in China.
Article 4 The labour administrative
authorities of the people's government of the provinces, autonomous regions and
municipalities directly under the Central Government and those at the prefecture
and city level with their authorization are responsible for the administration
of employment of foreigners in China.
Chapter II Employment
License
Article 5 The employer shall apply for the employment permission if
it intends to employ foreigners and may do so after obtaining approval and the
People's Republic of China Employment License for Foreigners (hereinafter
referred to as the "Employment License")
Article 6 The post to be filled by
the foreigner recruited by the employer shall be the post of special need, a
post that cannot be filled by any domestic candidates for the time being but
violates no government regulations.
No employer shall employ foreigners to
engage in commercialized entertaining performance, except for the persons
qualified under Article 9 (3) of these Rules.
Article 7 Any foreigner
seeking employment in China shall meet the following conditions:
(1) 18
years of age or older and in good health;
(2) with professional skills and
job experience required for the work of intended employment;
(3) with no
criminal record;
(4) a clearly-defined employer;
(5) with valid
passport or other international travel document in lieu of the passport
(hereinafter referred to as the "Travel Document")
Article 8 Foreigner
seeking employment in China shall hold the Employment Visas for their entry (In
case of agreement for mutual exemption of visas, the agreement shall prevail.),
and may work within Chinese territory only after they obtain the Employment
Permit for Foreigner (hereinafter referred to as the "Employment Permit") and
the foreigner residence certificate.
Foreigners who have not been issued
residence certificate (i.e. holders of F, L, C or G type visas), and those who
are under study or interim programs in China and the families of holders of
Employment Visas shall not work in China. In special cases, employment may be
allowed when the foreigner changes his status at the public security organs with
the Employment License secured by his employer in accordance with the clearance
procedures, under these Rules foreigners changes his status at the public
security organs with the Employment License and receives his Employment Permit
and residence certificate.
The employment in China of the spouses of the
personnel of foreign embassies, consulates, representative offices of the United
Nations System and other international organization in China shall follow the
Provisions of Ministry of Foreign Affairs of the People's Republic of China
Concerning the Employment of the Spouses of the Personnel of Foreign Embassies,
Consulates and the Representative Offices of the United Nations System in China
and be handled in accordance with the clearance procedures provided for in the
second paragraph of this article.
The Employment License and the Employment
Permit shall be designed and prepared exclusively by the Ministry of
Labour.
Article 9 Foreigners may be exempted from the Employment License
and Employment Permit when they meet any of the following conditions:
(1)
foreign professional technical and managerial personnel employed directly by the
Chinese government or those with senior technical titles or credentials of
special skills recognized by their home or international technical authorities
or professional associations to be employed by Chinese government organs and
institutions and foreigners holding Foreign Expert Certificate issued by China's
Bureau of Foreign Expert Affairs;
(2) foreign workers with special skills
who work in offshore petroleum operations without the need to go ashore for
employment and hold "Work Permit for Foreign Personnel Engaged in the Offshore
Petroleum Operations in the People's Republic of China";
(3) foreigner who
conduct commercialized entertaining performance with the approval of the
Ministry of Culture and hold "Permit for Temporary Commercialized
Performance".
Article 10 Foreigners may be exempted from the Employment
License and may apply directly for the Employment Permit by presenting their
Employment Visas and relevant papers after their entry when they meet any of the
following conditions:
(1) foreigners employed in China under agreements or
accords entered into by the Chinese government with foreign governments or
international organizations for the implementation of Sino-foreign projects of
cooperation and exchange;
(2) chief representatives and representative of
the permanent offices of foreign enterprises in China.
Chapter
III Application and Approval
Article 11 The employer when intending to
employ a foreigner, stall fill out the Application Form for the Employment for
Foreigners (hereinafter referred to as the "Application Form") and submit it to
its competent trade authorities at the same level as the labour administrative
authorities together with the following documentation:
(1) the curriculum
vitae of the foreigner to be employed;
(2) the letter of intention for
employment;
(3) the report of reasons for employment;
(4) the
credentials of the foreigner required for the performance of the job;
(5)
the health certificate of the foreigner to be employed;
(6) other documents
required by regulations.
The competent trade authorities shall examine and
approve the application in accordance with Articles 6 and 7 of these Rules and
relevant laws and decrees.
Article 12 After the approval by the competent
trade authorities, the employer shall take the Application Form to the labour
administrative authorities of the province, autonomous region or municipality
directly under the Central Government or the labour administrative authorities
at the prefecture and city level where the said employer is located for
examination and clearance. The labour administration authorities described above
shall designate a special body (hereinafter referred to as the "Certificate
Office") to take up the responsibility of issuing the Employment License. The
Certificate Office should take into consideration of the opinions of the
competent trade authorities and the demand and supply of labour market, and
issue the Employment License to the employer after examination and
clearance.
Article 13 Employers at the central level or those without the
competent trade authorities may submit their application directly to the
Certificate Office of the labour administrative authorities for the Employment
Permit.
The examination and approval by the competent trade authorities is
not required for foreign-funded enterprises to employ foreigners, and such
enterprise may submit their applications directly to the Certificate Office of
the labour administrative authorities for the Employment License, bringing with
them the contract, articles of association, certificate of approval, business
license and the documentation referred to in Article 11 of these
Rules.
Article 14 Employers with permission to employ foreigners shall not
send the Employment License nor the letter of visa notification directly to the
foreigners to be employed, and they must be sent by the authorized
unit.
Article 15 Foreigner with permission to work in China should apply
for Employment Visas at the Chinese embassies, consulates and visa offices,
bringing with them the Employment License issued by the Ministry of Labor, the
letter or telex of visa notification sent by the authorized unit and the valid
passport or Travel Document.
Personnel referred to in Article 9 (1) of
these Rules should apply for the Employment Visas by presenting their letter or
telex of visa notification by authorized unit; personnel referred to in Article
9 (2) should apply for the Employment Visas by presenting their letter or telex
of visa notification issued by the China National Offshore Oil Corporation;
personnel referred to in Article 9 (3) should apply for the Employment Visas by
presenting their letter or telex of visa notification issued by the foreign
affairs office under the people's government of provinces, autonomous regions or
municipalities directly under the Central Government and the relevant documents
of approval of the Ministry of Culture (addressed to the Chinese embassies,
consulates or visa offices).
Personnel referred to in Article 10 (1) of
these Rules should apply for the Employment Visas by presenting their letter or
telex of visa notification by authorized unit and the documentation on projects
of cooperation and exchange; personnel refereed to in Article 10 (2) should
apply for the Employment Visas by presenting their letter or telex of visa
notification by the authorized unit and the registration certification issued by
the administrative authorities of industry and commerce.
Article 16 The
employer should, within fifteen days after the entry of the employed foreigner,
take to the original Certificate Office the Employment License, the labour
contract with the said foreigner and his passport or Travel Document to receive
his Employment Permit while filling out the Foreigner Employment Registration
Form.
The Employment Permit shall be effective only within the area
specified by the Certificate Office.
Article 17 Foreigners who received
their Employment Permit should, within thirty days after their entry, apply for
the residence certificate with the public security organs bringing with them
their Employment Permit. The term of validity of the residence certificate may
be determined in accordance with the term of validity of the Employment
Permit.
Chapter IV Labour Administration
Article 18 The employer and
its foreign employee should, in accordance with law, conclude a labour contract,
the term of which shall not exceed five years. Such contract may be renewed upon
expiration after the completion of clearance process in accordance with Article
19 of these Rules.
Article 19 The Employment Permit of the employed
foreigner shall cease to be effective upon the expiration of the term of the
labour contract between the foreigner and his employer. If renewal is required,
the employer should, within thirty days priors to the expiration of the
contract, submit an application to the labour administrative authorities for the
extension of term of employment, and after approval is obtained, proceed to go
through formalities for the extension of the Employment Permit.
Article 20
The foreign employee should, within ten days after obtaining the approval for
extension of his term of employment in China or the change of his employment
location or his employer, go through formalities for the extension or change of
his residence certificate at the local public security organs.
Article 21
After the termination of the labour contract between the foreign employee and
his employer, the employer should promptly report it to the labour and public
security authorities, return the Employment Permit and the residence certificate
of the said foreigner, and go through formalities for his exit from
China.
Article 22 The wage paid to the foreign employee by the employer
shall not be lower than the minimum wage in the locality.
Article 23 The
working hours, rest and vacation, work safety and hygiene as well as the social
security of the foreign employees in China shall follow the relevant provisions
of the state.
Article 24 The employer of the foreign employee in China
shall be the same as specified in his Employment License.
When the
foreigner switches employers within the area designated by the Certificate
Office but stays in a job of the same nature, the change must be approved by the
original Certificate Office and recorded in his Employment Permit.
If the
foreigner is to be employed outside the area designated by the Certificate
Office or switch employer within original designated area while taking up jobs
of a different nature, he must go through formalities for a new Employment
License.
Article 25 For foreigner whose residence status is revoked by
public security organs due to his violation of Chinese law, his labour contract
should be terminated by his employer and his Employment Permit be withdrawn by
the labour administrative authorities.
Article 26 Should the labour
disputes arise between the employer and its foreign employee, they should be
handle in accordance with the Labour Law of the People's Republic of China and
the Regulations of the People's Republic of China on Settlement of Labour
Disputes in Enterprises.
Article 27 The labour administrative authorities
shall conduct an annual inspection of the Employment Permit. Within thirty days
prior to the end of every year of employment of the foreigner, the employer
should go through formalities of the annual inspection at the Certificate Office
of the labour administrative authorities. The Employment Permit shall
automatically cease to be effective when the deadline is passed.
In case of
loss or damage of the Employment Permit during the term of his employment in
China, the foreigner should promptly report it to the original Certificate
Office and go through formalities for the issuance of the Employment
Permit.
Chapter V Penalty Provisions
Article 28 Violation of theses
Rules, i.e. foreigners who work without the Employment Permit or employers which
hire foreigner without the Employment License, shall be handled by the public
security organs in accordance with Article 44 of the Rules Governing the
Implementation of the Law of the People's Republic of China on the Entry and
Exit of Aliens.
Article 29 For Foreigner who refuse to have their
Employment Permit inspected by the labour administrative authorities, change
their employers and professions at will or extend their term of employment
without permission, the labour administrative authorities shall withdraw their
Employment Permit and recommend that their residence status be canceled by the
public security organs. In case of deportation, the costs and expenses shall be
borne by the said foreigners or their employers.
Article 30 For foreigners
and employers who forge, alter, falsely use, transfer, buy and sell the
Employment Permit and the Employment License, the labour administrative
authorities shall take over the Employment Permit and the Employment License in
question, confiscate the illegal proceeds and impose a fine between ten thousand
and one hundred thousand RMB yuan. In serious cases which constitute a crime,
their criminal responsibility of the perpetrators shall be looked into by the
judicial authorities.
Article 31 In case of abuse of power, illegal
collection of fees, and fraudulent practices on the part of official personnel
of the Certificate Office or other departments, they shall be investigated in
accordance with the law for their criminal responsibility if crimes are
committed, or they shall be subject to administrative disciplinary measures if
the cases do not constitute a crime.
Chapter VI Supplementary
Provisions
Article 32 The employment in the mainland of the residents of
Taiwan, Hong Kong and Macao region of China shall follow the Rules for the
Administration of the Employment in the Mainland of the Residents of Taiwan,
Hong Kong and Macao.
Article 33 These Rules do not apply to the employment
of foreigners in China's Taiwan, Hong Kong and Macao region.
Article 34
InPidual economic organizations and private citizens are prohibited from
employing foreigners.
Article 35 The labour administrative authorities of
the provinces, autonomous regions and municipalities directly under the Central
Government may formulate their own rules for implementation of these Rules in
conjunction with the public security and relevant authorities in the locality,
and report it to the Ministry of Labour, Ministry of Public Security, Ministry
of Foreign Affairs and the Ministry of Foreign Trade and Economic Cooperation
for putting on record.
Article 36 The Ministry of Labors shall be
responsible for the interpretation of these Rules.
Article 37 These Rules
shall enter into force as of 1 May 1996. The Provisions Concerning the
Employment in China of the Foreigners Who Have Not Yet Obtained Residence
Certificate and Foreigners Who Study in China jointly promulgated by the former
Ministry of Labour and Personnel and the Ministry of Public Security on 5
October 1987 shall be annulled simultaneously
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