The new PRC Entry-Exit Administration Law will go into effect on July 1, 2013. This is the first time the authorities have meaningfully amended this area of law to reflect China's modern day immigration issues.Listed below are some key questions raised by expatriates and their employers concerning the anticipated rule changes:
1. Are there any new requirements/restrictions on entries or exits into China?
As with other nations, China follows suit by constricting and retracting its immigration policies based on its current political and economic environment. Until now many expatriates have managed to find refuge and employment in China by entering on business or tourist visas. The new law attempts to crack down on this issue in Article 25 which allows the visa issuing authorities a wide margin of discretion in granting visas - that means if a person, by whatever metrics being used at the time, is considered to fall into a category of persons who "might violate" visa policies, they could be denied entry visas into China. It is said that this law is particularly targeted at those in the Education and Entertainment sectors. On the other hand Article 28 has been drafted to tackle the issue of expatriates who pose a flight risk. This article stipulates that if an employer has unfulfilled payment obligations to PRC employees, they may be subject to a no-departure restraining order until such matters are resolved. Article 42 also provides that the authorities will periodically issue and update an "occupations list" which categorizes the industries and occupations that are encouraged, prohibited, or restricted to foreign participation. Therefore it seems the authorities will be herding expatriates into the direction it believes will promote to China's growth - much like the Foreign Investment Guidance Catalogue. Does this signal bye bye to the English teachers that don't possess the proper qualifications? Maybe..
2. How is the issue of documenting expatriates addressed?
China will soon start collecting biometric data. Fingerprints are explicitly mentioned in the new law, and the authorities may also collect "other biometric data" which presumably could extend to retinal scans or behavioral biometric data such as handwriting samples. For now I think it is reasonable to presume that if you are applying for any type of long term residence, your fingerprints will be taken.
3. Are there any new obligations on employers under the new law?
Yes. Article 19 says you better issue authentic invitation letters and application documents or you will be fined. There are several new articles dedicated to the increase in penalties and fines therefore it is important to continuously be mindful of the legal requirements for employing an expatriate.
4. How harsh are the authorities going to be when it comes to enforcement/penalization?
The base fines have increased for violations. If you have only a few employees this may not make a significant difference, but for large scale employers noncompliance may greatly increase the cost of operations. Article 45 for example requires international schools to report foreign student enrollment to the public security bureau. The public security bureau is also authorized to detain persons suspected of violating the entry-exit laws up to 30 days and in serious cases up to 60 days. These increased policing efforts are aimed to deter any violations..and with such unbridled discretion, I am guessing this may in fact work.
5. What to do next?
Keep following the updates in this area of law, plan for the upcoming year and following years and look out for interpretive guidance which could help clarify some of the vague sections of the law.
