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Hiring Foreign Employees in China
Hiring a foreigner in China usually requires all of the following be true:
- The candidate is in good health and over the age of 18
- The candidate possesses the skills and work experience required for the job
- The candidate has no criminal record
- The candidate has a specified employer
- The candidate holds a valid passport or any other valid travel document in lieu of passport
Note though that the local rules need to be consulted and, like everything else regarding China employment law, they can vary by locale. For example, some municipalities require a different number of years work experience. And there are almost always exceptions to the general rules. For example, even though most places impose an upper limit on the candidate’s age, many allow exceptions for candidate that satisfy certain other conditions. Adding to the confusion and the difficulty in getting things right, in some places many (sometimes most or all) of the local rules and exceptions are not available to the public and the only way to know what you as an employer can or cannot do is to “hash it out” by talking with the relevant authorities. In other words, if you really want to hire an employee who does not satisfy the requirements listed above, you should absolutely not give up.
Employers generally need to follow the following steps to bring on a foreigner as an employee. First, the employer must obtain an employment license from the local labor authorities and then secure a work visa invitation confirmation letter from the relevant foreign affairs office. With that letter, the employee may then apply for a work visa at the Chinese Embassy in the employee’s home country. Upon arrival in China, the employee must obtain (1) an alien employment permit from the relevant labor authorities and (2) an alien residence permit from the relevant public security department. Note that these permits need to be updated periodically.
A company that employs a foreigner must do so via a written employment contract and that employment contract should accord with applicable national, provincial and local laws and regulations. For example, most places require the contract term for a foreign employee not exceed 5 years. I know this sounds obvious, but do not have your foreign employee start working before he or she has secured the proper visa. Wait until you have all the necessary paperwork in place, NOT just after you have a signed employment contract. Before too quickly can cause your employee to be fined, lose his or her job, or even to be deported. The employer can be hit with a much larger fine and be ordered to bear all costs in connection with removing the illegal worker. Serial violators can even lose their ability to hire foreigners under any circumstance.
Beginning in 2014, China started drafting a regulation called the Provisions on the Administration of Foreigners Working in China, which is intended to focus on attracting more foreign talents into China. The goal is to replace the current Provisions on the Employment of Foreigners in China, which was promulgated by the Ministry of Human Resources and Social Security in 1995 and recently amended in 2011. Note the interesting change of words from “employment” to “working.” This is intentional and was done to deal with how foreign self-employed individual can legally work in China, not just be employed. The rule is not universal in China on this issue. There is nothing in Chinese law specifically prohibiting a foreigner from conducting business as a self-employed individual (except for residents from Hong Kong, Taiwan and Macau, who are explicitly permitted to do so). However, some places, such as Beijing, explicitly prohibit a foreigner from doing so and registering such a business in those places is impossible. I will not be holding my breath waiting for this new set of regulations to come out, but when and if it does, we will — of course — let you know.
For more on the hiring of foreign employees in China, check out the following:
- Paying Your Non-Chinese Employees In Your China WFOE: Splitting The Salary, Part 1
- Paying Your Non-Chinese Employees In Your China WFOE: Splitting The Salary Part 2
- Your China Expat Employee Contract. It Depends….
- Social Insurance For China Expats. It Depends.
We will be discussing the practical aspects of Chinese law and how it impacts business there. We will be telling you what works and what does not and what you as a businessperson can do to use the law to your advantage. Our aim is to assist businesses already in China or planning to go into China, not to break new ground in legal theory or policy.
Source: http://www.chinalawblog.com/2016/09/hiring-foreign-employees-in-china-2.html
