Complying with Chinese immigration rules has never been easy. But new visa and residency regulations that went into effect September 1 have been making it especially hard for foreign executives to navigate China’s immigration system, according to legal experts and business executives.

Calling the new regulations “a nightmare for our immigration colleagues,” one China-based manager—who wished to remain anonymous—said that uncertainty over the laws had grounded one employee’s family in Canada for more than a week. An executive from another company said she had to cancel at least two business trips due to a new 15-day waiting period for her residence permit renewal.

“If you’re not aware of these requirements, they can really trip you up,” said Kevin Jones, a partner in the China labor and employment practice of law firm Faegre Baker Daniels. “The main thing is keeping on top of things as they change and developing a plan.”

The new regulations clarify China’s Entry and Exit Control Law, a comprehensive immigration overhaul passed by the State Council in June 2012. Under the new regulations, there are nine visa categories that cover different types of business, educational, or recreational travel to China (see China’s Visa Categories below).

Among other changes, the regulations increase the processing time and paperwork requirements for residence permits and double most penalties for violations. Some cities—such as Beijing, Nanjing, and Suzhou—also require applicants for employment licenses to undergo criminal background checks.

Residency rules

It is China’s new rules governing residence permits that have so far had the greatest effect on foreign executives, according to legal experts. The rules establish significantly longer processing times and also require notarized marriage and birth certificates for dependent spouses and children.

Previously, foreigners applying or reapplying for residency had to surrender their original passport for a total of five working days. New rules require 15 working days to process applications—three times the original duration. According to Jones, this can put considerable strain on executives who need to leave the country or travel within China.

Shortly after these regulations went into effect, Shanghai’s Exit-Entry Administration received so many complaints that it shut down for 24 hours. When it reopened, officials announced that residence permit applications now require just seven business days. Beijing and other major cities continue to require 15 business days.

“It’s a time of confusion in immigration law, not just [for] applicants, but [for] government offices,” said Beijing attorney and immigration expert Gary Chodorow in a recent Economic Observer podcast. Local government offices must follow all rules in the new regulations, he said, but they have considerable control over implementation when it comes to processing times and even paperwork requirements.

One case in point is a requirement that applicants for the family reunion and private affairs visas submit notarized proof of their relationship with holders of authorized residence permits. In Shanghai, family members can now go to the US Consulate to obtain a sworn affidavit proving their relationship. In all other cities, they must provide either birth or marriage certificates that have been authenticated in their home country. This means that certificates must first be notarized by home country government agencies (either state or federal) and then submitted to home country Chinese embassies for authentication.

Finally, local governments may also require additional paperwork, such as proof that the applicant does not have a criminal record. Foreign workers in Beijing, Nanjing, Suzhou, Hangzhou, and Wuhan must submit criminal background checks performed by either the police department of the Chinese county in which they live or by an investigative body—like the FBI—in their home country. Certificates issued outside of China must be notarized by a Chinese consulate. So far Shanghai has declined to make this a requirement, but other Chinese cities are expected to follow suit.

Going forward

According to Chinese authorities, the new regulations represent a much-needed overhaul of China’s immigration system. In addition to rooting out individuals with criminal records and cracking down on foreigners who may have taken advantage of holes in China’s immigration policy, the new regulations aim to standardize visa and residency requirements across jurisdictions.

“The goal is to make it easier and increase (the) level of service for foreign friends,” said Cai Baodi, vice director of the visa division at Shanghai’s Entry and Exit Administration.

In a mid-September talk with Shanghai’s foreign community, Cai emphasized the advantages of the new system, which include so-called “stay” permits like the new 72-hour transit visa waivers for the cities of Beijing, Shanghai, Chengdu, and Guangzhou. Cai said that future changes may include the collection of biometric data for visas and residence permits.

According to Jones, the government’s positive spin on the new rules is exaggerated. However, the sweeping nature of the reforms is not. “Before it was easier to bend the rules if you didn’t fit into particular categories,” he said. “Going forward it will be more difficult.”

[box]

China’s Visa Categories

New regulations created nine visa categories—covering business, leisure, and family-related travel to China. The major visa categories and changes are as follows:

  • Business or commerce (M): Intended for individuals who are in China on short-term business trips, the M visa is a new category that takes over this function from the old F visa, which was issued to foreigners visiting China for “business exchanges.”
  • Exchanges, visits, and inspections (F): Previously, the F visa was issued to short-term business travelers, foreigners on official visits (such as lecture tours or cultural and scientific exchanges), and foreign students with studies or internships lasting fewer than six months. The new F visa is to be issued to individuals engaged in “exchanges, visits, and inspections.” Regulations expressly prohibit using these visas for business, study, or internship purposes.
  • Work (Z): The Z visa is still used for long-term foreign workers in China, and requires that holders apply for residence within 30 days after entry. Previously, workers’ accompanying family members would also apply for Z visas. Now, there is a separate category—the S visa—for these family members.
  • Journalist (J): Foreigners working as journalists in China can apply for two visa types—J1 and J2. Previously, J1 visas were issued to foreign correspondents living in China and J2 visas were issued to foreign correspondents making short trips to China. Now, the two types are divided based on the duration of stay—more than 180 days for a J1 visa, and 180 days or fewer for a J2 visa. J1 visa holders must apply for residence within 30 days after entry.
  • Student (X): Previously, student visas were issued for studies or internships lasting 180 days or longer. Now, the X visa is divided into two types based on duration of stay. The X1 visa is for long-term studies lasting more than 180 days. The X2 visa is for short-term studies of fewer than 180 days. X1 visa holders must apply for residence within 30 days after entry, and they may also be eligible for part-time work or internships.
  • Tourism (L): In the past, the L visa could be used for tourism, visiting relatives, and other private affairs (such as funerals). Now, the L visa is used exclusively for tourism. Foreigners applying for the L visa now have to provide proof of round-trip airline reservations and, in some cases, may also have to provide travel itineraries and hotel reservations.
  • Family reunion (Q): The Q visa is a new category, and covers family members of PRC citizens or permanent residents visiting or staying in China for the purpose of “family reunion.” The Q visa is divided into two types—Q1 and Q2. Family members—including parents, spouses, children, children’s spouses, siblings, grandparents, grandchildren, and parents-in-law—visiting China for 180 days or fewer must apply for a Q2 visa. Those staying in China for durations longer than 180 days must apply for a Q1 visa. Q1 visa holders must apply for residence within 30 days after entry. Previously, all such applicants traveled to China on a tourism visa.
  • Private affairs (S): The S visa is also a new category, and covers the relatives of foreign students (X visa holders) or workers (Z visa holders) living in China. The S category is divided into S1 and S2 visas, based on the duration of stay. Family members—including parents, spouses, children, children’s spouses, siblings, grandparents, grandchildren, and parents-in-law—visiting China for 180 days or fewer must apply for an S2 visa. Only the spouses, parents, parents-in-laws, or minor children of an X or Z visa holder may apply for S1 visas, which are good for stays of longer than 180 days. S1 visa holders must apply for residence within 30 days after entry. Previously, all such applicants used the L visa category.
  • Talent (R): The so-called talent visa is a new category, intended for high-level foreign “talents,” or for foreign workers who offer specialized skills in short supply in China. Final requirements for the R visa are yet to be decided, but it is expected that these visas will be very difficult to obtain.

[/box]

[author] Catherine Matacic ([email protected]) is associate editor of the China Business Review. [/author]

Posted by Christina Nelson