Under PRC law, expatriates working in China must be in possession of a work permit and a residence permit (for employment purposes) otherwise their employment may be considered illegal. In cases of illegal employment, the employer and the foreign employee may be penalized by the authorities, and their relationship will not be protected by labor law.
To obtain a work permit and residence permit for a foreign employee, an employer must apply to the government for an employment license and an invitation letter (for employment purposes) for the foreigner. With these documents, the foreigner may apply for a work visa. After obtaining the work visa, the foreigner should apply for a work permit within 15 days of entering or reentering China. With the work permit, the foreign employee should apply for a residence permit within 30 days after entering or reentering China.
If the foreigner first entered China on another type of visa, such as a visit visa or tourist visa, he or she may go to Hong Kong to obtain a work visa (after obtaining the employment license and the invitation letter). However, occasionally, the foreigner may need to return to his or her home country for the work visa due to China’s fluctuating immigration policies. Eligible foreigners may also apply for a foreign expert certificate as a substitute for the work permit. Also, chief representatives and representatives of representative offices do not need to apply for employment licenses, but can use representative certificates as substitutes.
Work permits usually have a term of one year and never exceed five years even if certain conditions are satisfied. If the term of a work permit is more than one year, the employer must apply to the government for an annual check of the work permit at least 30 days before the term reaches a full year. Residence permits usually have the same term as work permits. If the employer intends to continue to employ the foreigner after the expiration of the work permit and the residence permit, the employer must apply for a renewal of the permits 30 days before their expiration. The employment relationship is automatically terminated if the work permit becomes invalid or is cancelled.
In addition, foreigners who come to China to perform special tasks in the areas of technology, scientific research, management or guidance with Chinese business partners or other reasons and stay in China less than 90 days (the “Short-term Work”) must apply to the relevant authorities for their employment licenses, approval letters, certificates of employment, invitation letters or confirmations of invitation and work visas. If they intend to perform the Short-term Work in China in excess of 30 days, they must apply for residence permits (for employment purposes). However, foreign employees who are dispatched to the branches, subsidiaries and representative offices in China by foreign companies and stay in China for fewer than 90 days are not considered to be “performing Short-term Work” and must apply for trade visas (M visas).