“Notice on Curbing Illegal Employment of Foreign Nationals in China,” by the Ministries of Public Security, Labor and Foreign Affairs

Public Notice [1994] No. 17
Oct. 31, 1994
(Source)

 “Notice on Curbing Illegal Employment of Foreign Nationals in China,” by the Ministries of Public Security, Labor and Foreign Affairs

To the government of every province, autonomous regions, and municipalities directly controlled by the central government:

Recently, the number of foreign employees is ever-increasing with China’s economic development and opening up. Meanwhile, illegal employment has appeared in many places. Some overseas students work without authorization and illegally reside in China, and some hotels, restaurants, and dance halls illegally employ personnel from the Philippines and the Commonwealth of Independent States as servers or as companions to customers who come to sing, to drink and to dance, or even in pornography. Illegal employment has gone from being scattered and small-scale to organized and widespread. The number of illegal employees is increasing day by day. In 1993 alone, almost 800 foreign nationals were found illegally employed and expatriated. In Shenzhen in December, 223 instances of illegal labor were uncovered in one investigation.

It violates the Law on the Entry and Exit of Foreign Nationals for foreign nationals to work illegally in China. It not only is harmful to the public security, but also brings disorder to the labor market in China, thus infringing upon the interests of Chinese. Those foreign nationals who engage in regular labor compete with Chinese citizens for jobs. So it is not helpful to the stability of the labor market.

There are four main causes of illegal work. First, many work units, even press units, have an incorrect understanding of illegal employment of foreign nationals. They incorrectly believe that illegal employment is a normal phenomenon created by the reform and opening up policies, so they don’t support the public security and labor departments’ regulations, or even intervene in law enforcement. Second, some units that issue invitation letters and issue visas do not check strictly, and import laborers blindly. Third, some hotels, restaurants and recreational sites employ foreign nationals illegally in spite of laws and regulations in order to pursue economic benefits. Fourth, to get excessive profits, some units and persons import labor and introduce foreign nationals to work in China illegally.

In recent years, local public security bureaus have overcome difficulties, and the campaign against illegal employment has taken effect; however, there are still many problems existing. In order to ensure the healthy development of the Chinese labor market and provide more opportunities to Chinese citizens as well as maintain public security, illegal employment is banned in China. The details are as follows.

First, laws regulating foreign workers and prohibiting unauthorized employment should be strictly enforced. More and more foreign laborers will come to China and work here with the improvement in China’s economy. Since we have a large population and a labor supply that surpasses our needs, we need advanced technical and managerial expertise and foreign nationals who have special skills. This should be done by reporting and obtaining the approval of the higher administrative departments. No work unit or government department branch shall bring in foreign personnel or import laborers under the false guise of “exchange” or “training.” Hiring foreign nationals to provide general services such as servers or hostesses is also prohibited. Foreign nationals are also prohibited from providing massage to the opposite sex or performing in transsexual shows, etc.

The units that are authorized to issue visas shall strictly conform to Chinese regulations. They shall not send invitations to those foreign nationals who provide general services in China. Violations of the regulations will be strictly dealt with. In cases of serious violation, a unit’s right to issue invitation letters will be terminated and that party will face liability.

Second, management of foreign employees will be based on their identity and reason for coming to China. Anyone who comes to hold an office or work here shall first acquire work visas, except those personnel whose countries have signed the visa waiver agreements with China. Those who hold the travel, visitor’s, study abroad, transit, or flight attendant visa or those who are from the countries that have signed visa waiver agreements with China shall not work without permission, and any unit shall not employ them without authorization.

The following persons who need to be permanently stationed in China shall enter China with a Z visa and acquire a residence certificate, including a foreign chairman of board, vice chairman, managing director, deputy managing director, factory director, factory vice-manager of Sino-foreign JV, equity JV and wholly foreign owned entity (WFOE) and foreign chief representatives, representatives and deputy representatives of the resident representative offices of overseas companies. If another kind of visa is held, and it’s necessary to be permanently stationed in China, then in principle, the practice is that they need to exit and acquire the work visa and then re-enter China. In the special situation where the foreign national’s status must be changed, several relevant evidentiary materials such as the approval document, registration documents, business license, and representative certificate of the Sino-foreign JV, equity JV, WFOE or resident representative offices of overseas companies are required. After checking those documents, public security bureau may change the foreign national to a work visa and issue a residence certificate.

Third, those who do not acquire residence certificates shall leave the country on schedule, and shall not work in China. Where there’s a special need, they can apply for authorization to work in China after getting the approval of provincial or higher department in charge. If the labor and public security departments agree, the labor department can issue an employment permit, with public security department changing the type of visa and issuing a residence certificate.

Foreign students are not allowed to work illegally in China, and must leave after graduation on schedule.

Fourth, the departments of public security, labor and foreign affairs must cooperate, communicate and coordinate with each other to regulate the employment of foreign nationals in China. Propaganda shall be strengthened so that the public can know and obey the rules, and departments shall provide oversight. The labor department shall check and issue the employment permit by strictly conforming to Chinese regulations. The public security department shall investigate and deal with the legal employment of foreign nationals in coordination with the departments of labor and foreign affairs. In particular, intermediary units and persons that illegally introduce work to foreign nationals shall be harshly treated, with any illegal gains confiscated. Where the situation is serious and consistent defiance of regulations exists despite prior warnings, harsher penalties will be carried out. The campaign against illegal employment has been very effective this year. Anyone who is found being illegally employed shall be promptly repatriated back to his mother country. The employing work unit is liable for the fees needed to repatriate illegal employees.

Governments in every province, autonomous region and municipalities directly controlled by the central government shall require their departments of public security, labor and foreign affairs to formulate detailed measures and strengthen supervision and inspections, as well as provide funds for the oversight of foreign workers.

 公安部 劳动部 外交部

关于制止外国人在华非法就业的通知

各省、自治区、直辖市人民政府:

近几年,随着我国经济的发展和对外开放的扩大,外国人在华就业的人数不断增加,并在许多省、自治区、直辖市都出现外国人的非法就业的现象。有的外国留学生在社会上擅自谋职,非法居留;有的宾馆、饭店、舞厅非法雇用菲律宾、独联体等国家人员充当服务员或从事陪酒、陪唱、陪舞等活动,有的甚至提供色情服务。目前,外国人来华非法就业已从零散、小批发展到有组织的大批非法劳工输入,非法就业的人数也越来越多。仅1993年各地查处、遣送的就有近800人。深圳市去年12月份一次就查处了泰国非法打工者223人。

外国人在华非法就业,违反了《中华人民共和国外国人入境出境管理法》,不仅给我国的社会治安带来了危害,还扰乱了我国劳动力市场秩序,侵害了我国公民的利益。那些来华从事一般性劳动的外国人,与我国公民争抢就业岗位,不利于我国就业形势的稳定。

大量外国人来华非法就业的主要原因,一是有些单位甚至有些新闻单位对外国人来华非法就业存在不正确的认识,认为是改革开放带来的新事物,对公安机关、劳动部门的清理整顿不理解、不支持,甚至进行干扰;二是一些有权通知发签证的单位审批不严,盲目引进境外劳动人员;三是一些宾馆、饭店、娱乐场所为了追求经济利益,置国家法律于不顾,非法雇用外国人;四是一些单位和个人为谋取暴利而从事非法引进、介绍外国人来华就业的活动。

近几年来,各地公安机关在各级政府的领导下,在劳动、外事等部门的积极配合下,克服种种困难,对外国人来华非法就业问题依法进行清理整顿,取得了一定成效,但仍存在不少问题。为了确保我国的劳动力市场健康发展,保障我国公民的劳动就业机会,维护社会治安,依法制止外国人在华非法就业,现就有关问题通知如下:

一、要严格控制外国人来华就业,依法制止外国人非法就业。随着我国经济的迅速发展,将吸引更多的外国人来华工作。根据我国人口众多,劳动力资源丰富,劳动力供大于求的基本国情,目前需要引进的是高级技术、管理人才和有特殊技能的外国人,并须向主管部门申报审批。任何单位和部门不得擅自从事引进境外人员,或以“交流”、“培训”等为名搞变相的劳务引进;不得雇用外国人从事服务员、礼仪小姐及其他一般性劳务。更不允许引进外国人从事异性按摩、“人妖”表演等活动。

有权通知发签证的单位要按国家有关法规严格把关,不得为来华从事一般性劳务活动的外国人发邀请函电。如有违反,一经发现,严肃处理。情节严重的,停止或取消其签证通知权并追究当事人的责任。

二、要严格按照外国人来华身份和事由加强就业管理。凡来华任职和工作的外国人除与我有互免签证协议的国家人员外,均应事先在境外办妥职业(Z)签证;持旅游(L)、访问(F)、留学(X)、过境(G)、乘务(C)签证的人员或因公互免签证国家的人员不得擅自谋职,任何用人单位或个人不得擅自聘雇。

三资企业的外籍董事长、副董事长、总经理、副总经理、厂长、副厂长和境外企业常驻代表机构的外籍首席代表、代表、副代表,需在华常驻的,应持Z字签证入境,按规定办理居留证件。如持其他签证入境,需要在华常驻的,原则上应出境重新按规定办理职业签证入境。特殊情况如需要在境内改变身份的,须提供三资企业、境外企业常驻代表机构的批准件、注册登记、营业执照、代表证等有关证明材料,经公安机关审核后,可以为其改变为职业签证,办理居留证件。

三、未取得居留证件的外国人须按期离境,不得在华就业。有特殊需要的,经所在省或省以上主管部门同意后,向劳动部门提出就业申请。劳动、公安部门同意就业的,劳动部门发给就业许可证,公安部门为其改变签证字头,办理居留证件。

外国留学生不得在华非法就业,毕业后须按期离境。

四、各地公安、劳动、外事等部门要加强合作、互通情况、密切配合,共同做好对外国人就业的管理工作。要加强宣传,使群众知法守法,进行监督。劳动部门应严格按照规定审发外国人就业许可证;公安部门要切实加强查处外国人在华非法就业的工作,劳动、外事等部门要积极配合,要重点查处非法介绍外国人就业的中介单位和中介人,没收其非法所得,对情节严重或屡教不改的加重处罚。今年内查处外国人非法就业工作要取得明显成效。对在华非法就业的外国人要发现一个,处理一个,遣送一个。遣送非法就业的外国人所需费用由雇用单位负担。

各省、自治区、直辖市人民政府要责成公安、劳动、外事等部门根据上述通知精神和本地实际情况制定具体措施,加强监督和检查,并拨出一定的经费用于开展外国人就业管理工作。

2 Replies to ““Notice on Curbing Illegal Employment of Foreign Nationals in China,” by the Ministries of Public Security, Labor and Foreign Affairs”

Leave a Reply

Your email address will not be published. Required fields are marked *