Policy Information

 The difference between labor relations and labor relations

Foreigners should complete the employment procedures for employment. After completing the work permit and work type residence permit, the enterprise can only use the working hours to establish a labor relationship between the two parties. If a foreigner is already working in a company without approval, it is considered illegal employment.

Does it constitute a labor relationship for foreigners who have not obtained a Foreigner Work Permit in accordance with the law to sign a labor contract with the enterprise first?

Article 14 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Labor Dispute Cases (IV) stipulates that if a foreigner signs a labor contract with an employer within China without obtaining an employment certificate in accordance with the law, or if a resident of Hong Kong, Macao, and Taiwan signs a labor contract with a mainland employer without obtaining an employment certificate in accordance with the law, the people's court shall not support the request of the parties to confirm the existence of a labor relationship with the employer.

As an individual, what are the consequences of illegal employment

According to Article 43 of the Exit and Entry Administration Law of the People's Republic of China, if a foreigner engages in any of the following behaviors, it is considered illegal employment:

（1） Those who work within China without obtaining work permits and work-related residence permits in accordance with regulations;

（2） Working within China beyond the scope of the work permit; （3） Foreign students who violate the regulations on work study programs and work within China beyond the prescribed job scope or time limit.

Employers who illegally hire foreigners may face a maximum fine of RMB 50000 to RMB 100000.

The maximum fine that foreigners who illegally work in China may face has been increased from RMB 1000 to RMB 20000. Those with serious circumstances will face five to fifteen days of detention until deportation, and may not be allowed to enter the country for ten years from the date of deportation.

Article 80 of this law also stipulates that foreigners who engage in illegal employment shall be fined not less than 5000 yuan but not more than 20000 yuan; Those with serious circumstances shall be detained for not less than five days but not more than fifteen days and fined not less than 5000 yuan but not more than 20000 yuan.

Individuals who introduce foreigners for illegal employment shall be fined 5000 yuan per illegal introduction, with a total amount not exceeding 50000 yuan; Impose a fine of 5000 yuan on the enterprise for each illegal introduction of a person, with a total amount not exceeding 100000 yuan; Any illegal gains shall be confiscated.

Those who illegally hire foreigners shall be fined 10000 yuan for each illegal employment, with a total amount not exceeding 100000 yuan; Any illegal gains shall be confiscated.

What procedures are required for legal employment

When it comes to the employment procedures for foreigners, people's first reaction may be "employment permits" and "employment permits.".

According to national regulations, starting from April 1, 2017, the "two certificates integration" will be implemented. For those who work in China for more than 90 days, the "Foreign Expert Certificate (Foreign Expert Entry Permit)" and "Employment Certificate (Foreign Entry Employment Permit)" will no longer be issued, and the "Foreign Work Permit Notice" and "Foreign Work Permit" will be officially activated.

Which foreigners are exempt from obtaining a work permit for foreigners? There are mainly four types of personnel: (1) foreign professional technical and management personnel directly funded and hired by the Chinese government, or foreign professional technical and management personnel funded and hired by state organs and institutions, with senior technical titles or special skills qualification certificates confirmed by national or international authoritative technical management departments or industry associations, and holding the Foreign Expert Certificate issued by the Foreign Expert Bureau;

(2) Foreign labor personnel who hold the Foreigner's Permit for Engaging in Offshore Oil Operations in the People's Republic of China, are engaged in offshore oil operations, do not require landing, and have special skills;

(3) Foreigners who hold a Temporary Business Performance License approved by the Ministry of Culture for commercial cultural and artistic performances;

(4) Foreign nationals holding a Chinese Permanent Residence Permit for Foreigners.

What are the differences in employment between residents of Hong Kong, Macao, and Taiwan in China and foreigners? According to previous regulations, residents of Hong Kong, Macao, and Taiwan who work in mainland China also need to apply for employment permits. If employment is done without authorization, it will also constitute illegal employment. The following is a comparison between the two under the old regulations: It should be clarified that for residents of Hong Kong, Macao, and Taiwan in China, since August 2018, relevant departments have no longer accepted the application for new employment permits. In the future, residents of Hong Kong, Macao, and Taiwan in China, like other migrant workers, will directly form labor relations with employers and sign labor contracts.

Legal Application of Employment for Foreigners

Labor contract

Once a foreigner is legally employed in a domestic enterprise, according to the relevant provisions of the "Regulations on the Administration of Employment of Foreigners in China", the enterprise shall sign a labor contract with the employed foreigner, and the term of the labor contract shall not exceed five years.

According to this regulation, we can draw the following two conclusions:

Firstly, a foreigner who has completed the employment procedures in accordance with the law and established a labor relationship with the employer shall be subject to relevant Chinese labor laws and regulations in accordance with the law. Therefore, the enterprise shall sign a labor contract with the foreigner within one month from the date of employment. Otherwise, the foreigner has the right to demand that the employer assume legal responsibility for not signing a labor contract.

Secondly, regarding the term of the labor contract. According to regulations, enterprises and employed foreigners should enter into labor contracts in accordance with the law. The maximum term of a labor contract shall not exceed five years. The labor contract shall terminate upon its expiration, but may be renewed after completing the approval procedures in accordance with Article 19 of this regulation.

Based on this, when foreigners establish labor relations with domestic enterprises and sign labor contracts, the types of labor contracts are limited to fixed term labor contracts with a term not exceeding five years, and the provisions on non fixed term labor contracts are not applicable. Similarly, labor contracts with a term of completing certain tasks are not suitable.

In this regard, various provinces, cities, and autonomous regions in China have different views, with a very small number of places recognizing this breakthrough in legal provisions. For example, Article 16 of the Shanghai Notice on Implementing the Regulations on the Administration of Employment of Foreigners in China states that enterprises and foreign employees who are approved for employment have rights and obligations between both parties regarding employment terms, positions, remuneration, insurance, working hours, conditions for terminating employment relationships, and breach of contract responsibilities, According to the labor contract agreement.

work overtime

Foreigners employed in accordance with the law have the right to enjoy overtime pay if they work overtime outside the statutory working hours. According to national laws and regulations, foreigners employed in accordance with the law are also subject to the relevant working hours regulations of the country. Therefore, for foreigners employed in accordance with the law, if they work outside the statutory working hours, the enterprise should pay overtime wages in accordance with the law.

social insurance

Foreigners are also required to pay social insurance in accordance with the law. The issue of foreigners paying social insurance has always been a concern for employers, but due to the disconnection between practical operations and legal provisions, it has not been well implemented.

Before the implementation of the Social Insurance Law, it was very rare for employers to pay social insurance for foreigners, and most of them fulfilled their obligations through commercial insurance.

Article 97 of the Social Insurance Law stipulates: "Foreigners who are employed within China shall participate in social insurance in accordance with the provisions of this Law." This law for the first time stipulates the issue of compulsory payment of social insurance by foreigners.

Subsequently, the Ministry of Human Resources and Social Security's Interim Measures for Foreigners Employed in China to Participate in Social Insurance further clarified the issue of foreigners having to pay social insurance.

The Measures also mention that individuals with the nationality of countries that have signed bilateral or multilateral agreements on social insurance with China, if employed within China, shall participate in social insurance in accordance with the provisions of the agreement. It should be noted that individuals of national nationality who have signed bilateral agreements on social insurance are not exempt from payment as long as they are employed domestically. If the employee has not paid the corresponding social insurance in the country or has exceeded the exemption period stipulated in the bilateral agreement on social insurance, the employer still needs to pay social insurance for them in accordance with the law.

At present, China has signed bilateral agreements on social insurance with nine countries (Germany, South Korea, Denmark, Finland, Canada, Switzerland, the Netherlands, France, and Spain). When recruiting personnel from these countries, enterprises can refer to the corresponding agreement terms.

Rest and vacation

Foreigners who are employed by employers in accordance with the law shall enjoy the right to rest and vacation as stipulated by national laws and regulations. This means that foreigners also enjoy statutory holidays such as annual leave, statutory holidays, marriage leave, maternity leave, etc.

minimum wage

For foreigners who are legally employed in employing enterprises, their salary standard after providing normal labor shall not be lower than the local minimum wage standard.

Can international students in China intern

Strictly speaking, students studying in China are not allowed to intern. Because the main purpose of international students coming to China is to study, their visa should also indicate that they are studying. Therefore, if international students go to work at the corresponding unit at this time, it may constitute illegal employment, as it does not match the visa content, unless the enterprise notes internship on their residence permit through formal channels.

Article 22 of the Regulations of the People's Republic of China on the Administration of Entry and Exit of Foreigners stipulates that if foreigners holding study residence permits need to work, study, or intern outside of school, they shall apply to the entry and exit management agency of the public security organs for residence permits with information such as work, study, or internship location and duration after obtaining the consent of their school.

Foreigners holding study residence permits who do not include the information specified in the preceding paragraph in their residence permits are not allowed to work, study, or intern outside of school.

According to the Regulations on the Administration of Employment of Foreigners in China, foreigners who have not obtained residence permits (i.e. those holding F, L, C, G visas), foreigners studying or interning in China, and accompanying family members of foreigners holding professional visas are not allowed to work in China.

In case of special circumstances, the employing enterprise shall apply for a permit certificate in accordance with the approval procedures stipulated in this regulation. The employed foreigner shall change their identity at the public security organ with the permit certificate and obtain a "residence permit" and "employment permit" before being allowed to work.

Can foreign employees reach retirement age and the company terminate their labor contracts?

According to the provisions of the Labor Contract Law, the labor contract shall be terminated when the employee reaches the statutory retirement age (the current standard is 60 years old for male employees and 50 years old for female employees) or begins to enjoy pension benefits.

But can the company terminate the labor contract if foreign employees reach the retirement age stipulated by Chinese law? The Shanghai court once held that the regulations in the Shanghai area did not prohibit foreigners who reached the statutory retirement age from continuing to work in the city. The Beijing court, on the other hand, believes that companies can terminate their labor contracts on the grounds that foreign employees have reached the statutory retirement age in China, without the need to pay economic compensation.

Can companies renew open-ended labor contracts with foreign employees?

The Labor Contract Law stipulates that after the same employer and employee have entered into two consecutive fixed-term labor contracts, when renewing the contract again, an open-ended labor contract shall be concluded. However, the issue of whether employees can request to sign an open-ended labor contract when the same enterprise signs two consecutive fixed-term labor contracts with foreign employees varies in different regions. Regional interpretation shall prevail.

Firstly, according to the Regulations on the Administration of Employment of Foreigners in China, the longest term of a foreign-related labor contract shall not exceed five years, and the labor contract shall be terminated upon its expiration. After completing the approval procedures for foreign employment, both parties can renew the labor contract.

Basic requirements for applying for a work residence permit

They should be at least 18 years old, in good health, with no criminal record, have a confirmed employer within the country, and possess the necessary professional skills or corresponding knowledge level to engage in their work.

The work I am engaged in meets the needs of China's economic and social development, and is in urgent need of professional personnel in the country.

If there are other provisions in laws and regulations regarding foreigners coming to work in China, those provisions shall prevail.