The 1996 Rules for the Administration of Employment of Foreign Nationals in China require that foreigners seeking to work in China have “no criminal record” (art. 7). However, neither those rules nor the country’s new Exit-Entry Administration Law specifically require a CNCC.
Some cities, such as Suzhou, Nanjing, Chengdu, Wuhan, and Changsha, as well as the province of Yunan, previously put CNCC requirements in place. Shanghai has not. But other cities may be developing such requirements.
Employers should plan ahead to apply for such certificates because timing for issuance may vary. Our law firm can assist with this matter.
Here’s a translation of the announcement circulated by email:
Per the requirements of the Regulations on the Administration of Employment of Foreigners in China, the Regulations on Foreign Experts’ Applications for Employment Permits, etc., foreigners applying to work in China should submit a certificate of no criminal conviction. In order to strictly enforce the rules and regulations related to examination and approval of employment licenses, effective July 1, 2013, a work unit applying for a foreigner’s employment license should submit with the application materials a certificate of no criminal conviction from the applicant’s place of residence. Specifically:
I. Scope of Persons Covered:
1. Persons applying for a “foreigner’s employment license” (就业许可) or “foreign expert work permit” (专家来华工作许可);
2. Persons applying for a representative office’s “foreigner’s employment permit” (就业证); and
3. Persons who hold a “foreigner’s work permit” (就业证) or “foreign expert certificate” (专家证) issued in another city seeking to transfer employment to our city.
II. Requirements for the Certificate:
1. A certificate of no criminal conviction should be issued by the public security or justice authorities (司法机关) in the applicant’s place of residence (with a translation by an official translation company); or
2. A certificate of no criminal conviction authenticated by a Chinese Consulate.
Beijing Municipal Bureau of Human Resources and Social Security
June 4, 2013
Essentially the same information is included in the Bureau’s 企业办理外国人就业许可相关事宜 (Matters Concerning Enterprises’ Applications for Employment Licenses for Foreign Nationals), also updated June 4. Note that no new CNCC is required to renew or amend a work permit.
For applicants from the U.S., any of the types of CNCCs listed below in Q2 should suffice.
Qingdao Municipal Bureau of Human Resources and Social Security
(QMBHRSS) has announced in its Guide to Service for Foreigners Coming to Work in Qingdao (外国人来青就业服务指南) that what is required is an “original certificate of no criminal conviction notarized by one’s own country and authenticated by a PRC consulate abroad (with an attached Chinese translation, including the translation company’s official seal).” This must be submitted at the employment license (就业许可) application stage or, for a person seeking to work at a representative office, at the work permit (就业证) application stage. A certificate is needed for individuals who have previously worked in other cities in China. But no certificate is needed for changing work units within Qingdao.
For applicants from the U.S., QMBHRSS has stated orally that the only acceptable format for a CNCC is an FBI Criminal History Check.
Qingdao’s Foreign Expert Bureau doesn’t require applicants for a foreign expert certificate to submit a CNCC. However, a signed statement that the applicant has no criminal conviction is required. Further, when a foreign expert in the field of culture or education applies for the first time to the Public Security Bureau for a residence permit for work, a CNCC authenticated by a PRC embassy or consulate will be required. (In addition, an applicant for seeking to extend his or her residence permit who has not previously submitted a CNCC will be required to do so.)
For applicants from the U.S., the Public Security Bureau does not require any specific format for the CNCC, although they have recommended orally that it be nationwide in scope rather than covering just one state. (An FBI Criminal History Check is acceptable).
Hangzhou’s Municipal Bureau of Human Resources and Social Security announced on Oct. 14 that:
We have received notice from higher-level authorities that, effective today, foreign nationals applying to our Bureau for employment licenses (就业许可)–including persons already holding Z visas but applying for work permits (就业证) for the first time in Hangzhou, and including people coming from abroad–should submit a certificate of no criminal conviction.
According to the “Rules on Management of Foreign Nationals Working in China,” foreign nationals applying for employment licenses should submit a certificate of no criminal conviction. Our Bureau will be strict on this point in examining and approving applications. Inconvenience or business needs of a work units or individual will not be grounds for waiving this requirement.
While the Bureau doesn’t specify which agency must issue the certificate, the Bureau has confirmed orally that it must list any convicitons nationwide (not just within a state or province) and it must be authenticated by a Chinese consulate.
Frequently Asked Questions
Q1. What if the place abroad where the applicant “resides” is not his or her country of nationality?
The Beijing announcement asks for the certificate from the individual’s “place of residence,” not country of nationality. The announcement doesn’t define “place of residence,” and are unclear about whether a China CNCC could be acceptable. I’ve been told orally that a China CNCC is acceptable instead of a foreign CNCC if the applicant has lived in China for 9 months each of the most recent 3 years preceding the application. In such cases, the China CNCC must be accompanied by (a) a declaration from the applicant that he or she has not been convicted of a crime and won’t commit a crime in the future, and (b) a letter from the sponsoring work unit, if the applicant already works there, stating that to their knowledge the applicant has no convictions. Since there is no written rule, the best practice is to confirm directly with the Beijing HRSS whether this would be acceptable in your particular circumstances.
Qingdao’s Municipal Bureau of Human Resources and Social Security more ambiguously requires that the notarization be done by one’s “own country.” Qingdao will not accept a China CNCC.
Q2. What forms of the certificate of no criminal conviction are issued in the United States?
Various forms of CNCCs are issued in the U.S.:
- FBI: An FBI criminal history summary check (“rap sheet”) requires submission of fingerprints. Fingerprinting options include, but are not limited to, being fingerprinted abroad or by a “channeler” in the U.S. Typically, U.S. Embassies and Consulates abroad don’t assist with fingerprinting for purposes of obtaining a CNCC. But the U.S. Embassy in Beijing and the U.S. Consulates in Shanghai and Chengdu have posted instructions for how to get fingerprinted by local PRC agencies. A completed fingerprint card can then be submitted to the FBI (processing takes 5-6 weeks) or to a channeler (processing takes 1-2 days).
- State and local law enforcement authorities: Each has its own procedures for requesting a certificate of criminal conviction. Some require fingerprints, and some require the applicant to apply in person. For state-level contact information, see the FBI’s list of State identification bureaus.
- Court: Courts can issue a letter stating that a search of their records shows no conviction.
- Private agency certificates based on queries of public databases
Q3. What forms of certificate of no criminal conviction do other countries besides the U.S. issue?
Here’s a list of methods for getting a CNCC from various countries. It’s published by the U.S. State Department. It’s not all-inclusive.
Q4: When does a CNCC need to be authenticated? What’s the procedure?
Authenticating a foreign document simply means confirming that a signature, seal or stamp appearing on the document is genuine. Authentication in no way attests to the truthfulness of the contents of a document.
Qingdao requires that all CNCCs be authenticated. Beijing requires authentication only if the CNCC isn’t from a public security agency (i.e., local or state police or the FBI) or a justice authority (i.e., a court or prosecutor).
Basic information about authenticating other types of documents is outlined in the PRC Consulate in Los Angeles’ instructions for authentication.
Q5: Will any conviction–or just certain convictions–render a person ineligible for an employment license?
The Ministry of Labor’s Rules for the Administration of Employment of Foreign Nationals (1996) specifically say that an employment license applicant must have “no criminal record” (无犯罪记录). (Art. 7). That makes it sound like any criminal conviction will make a foreign national ineligible for an employment license. Revised Ministry of Labor rules touching consistent with the new Law may be released, perhaps in the near future.
(The 2012 Exit-Entry Administration Law doesn’t specify that persons with convictions are ineligible for visas, admission, or residence permits. Instead, the Law focuses on whether the applicant is likely to be “engaged in … criminal activities” in China and whether there are “other reasons” for ineligibility. (Art. 21). The State Council rules implementing the Law are silent on the matter. China’s new visa application form asks, “Do you have any criminal record in China or any other country?”)
Another question is whether all foreign convictions–or only convictions that fall within the PRC Criminal Law’s definition of “crime”–render a person ineligible for an employment license under the Ministry of Labor’s rules. The PRC Criminal Law defines crime as any act that endangers society and is subject to punishment. An act is not a crime, however, if it is “obviously minor and the harm done is not serious.” (Art. 13). Unlawful acts that don’t amount to crime are defined by administrative laws and regulations, punished by administrative organs according to administrative procedures, and subject to administrative penalties.
For example, PRC law distinguishes between the “crime” of driving with a blood alcohol content at or above 0.08% versus driving with a BAC of at least 0.02% but under 0.08%, which may subject a person to administrative penalties. In contrast, in California, a person under age 21 or a commercial driver can be convicted of DUI with a BAC under .08%. So is that person ineligible for an employment license in Beijing on the basis of having committed a “crime” in California, or eligible on the basis that the activity doesn’t constitute a “crime” in China?
Another example of activities that don’t constitute crimes in China is activities that result in the administrative penalty of reeducation through labor, which may include instances of drug addition, prostitution, illegal gambling, public indecency, and petty theft.
Finally, expungement and other post-conviction relief in a foreign jurisdiction may allow an individual to state he or she has never been convicted and to obtain a CNCC. If hypothetically the Chinese government were to learn of the conviction, it’s unclear whether the Chinese government would use the “erased” conviction as a basis to deny a visa or other immigration benefit.
In practice, local labor bureaus and foreign expert bureaus may be willing to approve cases where they perceive a prior criminal conviction to be minor, the applicant to have been rehabilitated, and/or the applicant to be especially talented.
Our law firm can assist your company’s employees or you individually with CNCC’s Feel free to contact us. And feel free to use the comments below to share your experience.