The Exit-Entry Administration Law, enacted in 2012, made strides towards updating the immigration system. The law focuses on regularizing exit, entry, and residence of foreigners. It reflects a desire to import high-level foreign and returned Chinese professionals and entrepreneurs valuable to the country’s scientific and economic development.
But there’s much more to be done. Here are ten ideas for reforming China’s immigration law system in ways that serve the national interest. Some are big, some small.
1. Create a “State Administration of Immigration” and a transparent rule of Law: The government needs an agency with a mandate to manage immigration. In particular, an immigration agency is needed to develop and manage a transparent and efficient immigration law system. Currently, immigration responsibilities are scattered across numerous departments. These departments not only fail to cooperate but also “compete for turf and influence,” marring policy making and implementation, according to Professor Frank Pieke. With one agency taking the lead, it would be possible to streamline the process of granting visas and residence permits through a system with unified procedures and clear interpretations of the rights and obligations of foreign nationals, says Wang Huiyao. Also the agency could train up a professional civil service, according to Professor Shen Haimei. The agency could also be given a mission to develop an administrative culture that encompasses both enforcement and customer service to stakeholders (e.g., PRC work units that recruit foreign talent, PRC citizens seeking to be reunited with family members, and foreign nationals).
2. Ease green card requirements: Since putting into place rules for granting permanent residence to foreign nationals, China has only granted six or seven thousand green cards. The numbers alone are evidence that the program needs to be re-tooled in order for China to become a meaningful magnet for global talent, as well as to offer meaningful ways for binational families to stay together. Right now, green cards are “primarily” reserved for “international friends” of the Communist Party, says Professor Shen Haimei. According to Wang Huiyao of the Centre for Globalisation in Beijing, green cards for talent should be issued on a points-based system similar to many other countries, with points for employer sponsorship as well as the possibility that independent, highly talented applicants without sponsorship could directly apply for a green card. Overseas talent is needed in part because China is suffering from brain drain. According to China’s Ministry of Education, the number of overseas students who overseas in 2011 was 2,244,100, with only 36% expected to return. Some of those who naturalize abroad (thereby losing PRC citizenship) can be drawn back with green cards. The government has recently released several “trial balloons” hinting that reform of the green card system is coming.
3. Reduce the period that the Public Security Bureau holds applicants’ passports while processing residence permits: This was the number one visa-related recommendation in the American Chamber of Commerce-China’s 2014 White Paper. Under the Exit-Entry Administration Law, the public security bureau (PSB) exit-entry division has up to 15 working days to adjudicate a residence permit application. The problem, according to companies that employ foreigner nationals, is that the PSB in many cities holds the employee’s passport during this period. Noncitizens are required to show passports for international (and sometimes domestic) travel, especially for executives who oversee offices throughout Asia. Passports are also needed for banking and other ID purposes. The PSB policy disrupts normal business operations, impacting a company’s bottom line. PSB has no real need to hold the passport for 15 days, and policy initiatives to expedite residence permit processing or to return passport during processing, for good cause, have not worked.
4. Grant a two-year practical training visa to foreign students who earn a bachelor’s degree or higher in China: China has made impressive strides in attracting foreign students, hosting 328,330 by 2012. That made China the #3 destination for international students after the U.S. and United Kingdom. The country has an ambitious target of attracting some 500,000 foreign students by 2020 – with 150,000 of them in higher education – as part of China’s National Plan for Medium and Long-term Education Reform and Development 2010-2020. Through this initiative, the country hopes to internationalize China’s universities, to attract talent, and to project “soft power.” However, the majority of foreign students in China are in non-degree courses, mainly in language and cultural programs. Only a third of the total are enrolled in university degree courses. An important carrot for attracting top students is to offer them the possibility of getting a two-year practical training visa upon graduation with a bachelor’s degree or higher. That’s because under current immigration laws in most cities, no work visa is available without two years of post-graduate experience. The country can better fulfil its goal of attracting top international students if they have an opportunity to use their professional and language skills in the workplace following graduation.
5. Clarify rules for enrollment in international schools: According to Ministry of Education rules, only children of foreign workers holding residence permits may attend international schools. Children of Chinese citizens may not. The rules are silent on whether, for example, children of foreign doctoral students may attend, or whether children of spousal visa holders may attend. Similarly, the rules are silent on whether children of binational couples may attend. Some such children have foreign passports with PRC residence permits, while others hold Chinese residence registration booklets (户口本), exit-entry permits (出境入境通行证), travel permits (旅行证), etc. In the absence of clear national rules, local governments have put in place a hodgepodge of local rules, which are sometimes not made public, and sometimes leave children unable to attend either international schools or public schools.
6. Grant work authorization to the spouses of PRC citizens and of work visa holders: The foreign spouses of PRC citizens and of work visa holders are not eligible to work in China. Obtaining a work visa is not an option for many because work visas typically require a bachelor’s degree, two years’ postgraduate experience, and specialized skills that are in shortage in China. Mostly wives, their professional and technical skills can grow stale if relegated to involuntary housewife status. Their families’ bank balances are impacted by having only one breadwinner. They can be lonely and depressed as strangers in a new country with no access to the self-esteem of work or the social outlet provided by a workplace. The power imbalance between working husband and stay-at-home wife can stress the relationship. In some cases, this leads to domestic violence or suicidal thoughts. Moreover, if China is serious about winning the international talent war, then China must match other developed countries that routinely authorize foreign workers’ trailing spouses to work. Some top talent aren’t willing to make a global move if their spouse can’t work, says Stephen Yale-Loehr, a professor of immigration law at Cornell Law School.
7. Regularize the status of foreign brides who lack valid immigration papers: Many “foreign brides” from countries like North Korea and Vietnam enter the country illegally, either by their own means or through the facilitation of smugglers. According to Professor Shen Haimei, such women lack visible legal and policy support to obtain immigrant status or even an official marriage certificate. This stimulates the growth of human trafficking crime across China’s borders and has a negative effect on society as a whole. Their situation is similar to but more extreme than the spouses of PRC citizens and of work visa holders holding valid immigration papers. There should be mechanisms put into place for them to regularize their immigration status.
Increased immigration may be a response to China’s significant gender gap. About 118 boys are born for every 100 girls, against a global average of 103 to 107. China’s males outnumber females by 34 million. Beijing News suggested that Ukrainian women could be a solution to China’s problem. More seriously, foreign brides’ immigration status needs to be regularized and they need to be given the right to work. Without that, the Constitutional guarantee of equal rights in all spheres of life, including work, will lack significance.
8. Screen Refugees in Accordance with Domestic and International Law: The Exit-Entry Administration Law states that China will screen applicants for refugee status and allow those determined to be refugees to remain in China. This is consistent with China’s international law obligations under the 1951 Refugee Convention and 1967 Protocol Relating to the Status of Refugees. A refugee is legally defined by the Refugee Convention as a person who has fled his or her country because of actual persecution or “owing to well-founded fear of being persecuted” is unwilling to return to his or her country. The actual or threatened persecution must be on the because of race, religion, nationality, membership of a particular social group or political opinion. Under the treaty, a country mustn’t expel a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened. Unfortunately, the Chinese government has still not published regulations putting into place a framework for screening refugees. The government routinely denies the United Nations High Commissioner for Refugees (UNHCR), as well as international aid organizations, access to persons from seeking refugee status. According to UN reports, such as this one, refugees are forcibly repatriated to countries where they may face death, torture, or other persecution. China can do better.
9. Enact Rules to Protect Victims of Human Trafficking: Victims of human trafficking in China are “exposed to debt bondage, forced prostitution, and deprivation of deprivation, according to Heidi Østbø Haugen. The Chinese government ratified the UN Trafficking in Persons Protocol in December 2009. Now, conforming domestic laws need to be enacted.
10. Encourage Integration of Foreigners into the National Mosaic: The Exit-Entry Administration Law has a strong law-and-order focus, including its emphasis on sanctioning the so-called “three illegals” (三非 san fei), illegal entry, residence, and employment. Yet the law is “silent on the larger issues of social, cultural, and religious integration into Chinese society,” says Professor Frank Pieke.
Foreigners too often “are still treated on the basis of the old exclusionary discourse as carriers of subversive influences that may harm Chinese society and even the rule of the CCP,” says Pieke. It’s been argued that China’s foreigner-related policies (外事 waishi) have two contradictory goals. One is to stimulate, encourage, and manage increased foreign investment and technology exchange, as well as to continue to build up China’s international prestige. The other is to control the Chinese population by maintaining a notion of the foreign threat to China. A 1993 handbook on waishi told Chinese citizens who have contact with foreigners to
“guard against the corrosive influence of capitalist thinking and way of living. They must not voluntarily discuss our national’s internal matters, or divulge Party or state secrets to a foreigner…. It is forbidden to disseminate to foreigners expressions of discontent, or reactionary views that attack our Party or socialist system.”
See Anne-Marie Brady, Treat Insiders and Outsiders Differently”: The Use and Control of Foreigners in the PRC 943, 958 China Quarterly (2000). That 20-year-old propaganda is echoed by current messaging from Beijing. Such messaging, which treats foreigners as different from Chinese–as the “other”–prevents integration of foreigners in China. What’s needed instead is the promotion of Chinese language and civics lessons for foreign nationals, increased rights and opportunities to participate in Chinese civic life, and a path towards permanent residence and eventually citizenship for those committed to remaining in China for the long term. That’s important because global talent doesn’t just need to be recruited to China, it needs to be retained.
There’s more to be said on this topic. Do you have other ideas for immigration law reform? Add them in the below comments section.