China’s New Visa Law (Updated Oct. 2013)

VISAS, STAY CERTIFICATES, AND RESIDENCE PERMITS, IN GENERAL

• Under the new law, PRC embassies, consulates, and other visa-issuing agencies outside of Mainland China (e.g., Chinese Visa Application Service Centers) are responsible for issuing visas (签证). (EEAL, art. 4). In narrow circumstances (e.g., emergencies) the public security bureau (PSB) at a port of entry (e.g., airport) can issue a single-entry visa valid for not more than 30 days (EEAL, art. 20).

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• Also, the exit-entry office of the public security bureau (PSB) can issue visas to extend one’s stay (EEAL, art. 29; State Council regs, art. 12) or change the purpose of stay (State Council regs, art. 10) in Mainland China. “Reasonable and sufficient” grounds must exist for seeking the new visa. (EEAL, art. 29).

Residence Permits: The PSB exit-entry office issues residence permits (居留证件) to foreign nationals seeking to reside in China. Applicants abroad for J1, Q1, R, S1, X1, and Z visas intend to enter China for purposes of taking up residence. They must apply to the PSB for residence permits within 30 days of entry. (EEAL, art. 30; State Council regs, art. 9). Once issued, a residence permit can be used to enter China instead of a visa. (EEAL, art. 22).

Stay Certificates: Some categories of foreign nationals entering China may be granted stay certificates (停留证件) instead of visas or residence permits. For example:

• Foreign nationals whose governments have reciprocal visa waiver agreements with China (e.g., tourists from Singapore, Brunei, and Japan)

• Persons transiting through Beijing, Shanghai, Guangzhou, or Chengdu within 72 hours.

• Persons ordered deported or otherwise required by to depart will be issued stay certificates authorizing their exit.

• Persons who renounce PRC nationality.

• persons whose residence permits have been cancelled who wish to remain in China for up to 30 additional days as a “grace period” to travel wrap up their affairs in China.

The new visa classifications

The Ministry of Foreign Affairs has issued a bilingual Notice on Handling PRC Visa Applications (申请办理中华人民共和国签证须知) spelling out China’s new visa classifications. They are listed below. See our related article for further details.

The new types of residence permits

Under the regulations, residence permits are divided into the following types:

1. Residence permits for employment, issued to foreigners who will work in China. A person entering on a Z (work) or R (talent) visa would apply for this type.

2. Residence permits for study, issued to foreigners who will study in China. A person entering on an X1 (student) visa would apply for this type.

3. Residence permits for journalists, issued to foreign journalists who reside in China on behalf of permanent offices of foreign news agencies. A person entering on a J1 (journalist) visa would apply for this type.

4. Residence permits for family reunion, issued to persons seeking to reside in China with Chinese citizen or  permanent resident relatives, or who need to live in China for foster care. A person entering on a Q1 visa would apply for this type.

5. Residence permits for private affairs, issued to certain relatives of foreign nationals holding residence certificates for purposes of employment, study, etc. These permits are also issued to foreigners who need to reside in China to deal with other private affairs. A person entering on an S1 visa would apply for this type.

The duration of stay for the new visa classifications and residence permits

Stay certificates and “short-term” visas will be issued for a maximum stay of 180 days. (EEAL, art. 34; State Council regs, art. 36(4)). The cumulative time allotted in visas extending one’s stay should not exceed the originally allotted period of stay as shown on the visa. (EEAL, art. 30). An employment-type residence permit may be issued valid for 90 days to 5 years. (EEAL, art. 30). In contrast, a non-employment-type residence permit may be issued valid for 180 days to five years. (EEAL, art. 30). The law and State Council regulations don’t specify how, within those ranges, to decide the stay for a particular individual on a stay certificate, visa, or residence certificate. Ministry of Public Security rules are expected to be published to provide some clarification, but in the interim local governments are free to set their own rules. According to the Beijing provisional procedures, for example:

* For a person granted an extension of stay, the cumulative time of all extensions should not exceed the originally allotted period of stay as shown on the visa. (EEAL, art. 29). For a person granted a new visa classification, the cumulative period of stay since the date of the current entry should not exceed one year. (Beijing provisional rules).

Who needs a medical exam?

Visa applicants: Under prior rules, foreigners coming to China for residence one year or longer should, when applying for visas at the Chinese embassy or other visa issuing agency abroad, get a medical exam. (2010 Implementing Rules, art. 6). Under the new regulations, this is no longer a requirement.

Employment license applicants: Rules require a health certificate as part of the application for an employment license. (1996 regs on the Employment of Foreigners, art. 11).

Residence permit applicants:

• The new State Council regulations require a health certificate for anybody applying for a residence permit valid for one year or more.

• The new regulations don’t adopt a provision in the draft regulations (art. 22) that would have exempted minors under age 16 from the medical exam. However, local rules may have the same result. For example, Beijing doesn’t require a medical exam from applicants under age 18.

• As in the past, the exam is valid for 6 months (State Council regs, art. 16), so it may be possible to use the same certificate as used for the employment license. The regulations don’t require a medical from applicants extending a residence permit, changing from one type of residence permit to another, or replacing a residence permit. (State Council regs, art. 17).

WORKING IN CHINA

Qualifications are required for a Z work visa

Existing rules require that Z visas be reserved for positions for which the employer has a “special need” and that is currently a “shortage” occupation in China. (1996 regs on the Employment of Foreigners, art. 6). These rules are fairly vague and unevenly enforced. Under the new law, various departments should cooperatively formulate and periodically adjust a guidance list regarding special need / shortage occupations. The list should be based on economic and social development needs, as well as the supply of and demand for human resources. (Art. 42). No such list has been published yet. It remains to be seen how the new law will be interpreted and enforced.

Update on R visas for foreign talent

As mentioned above, R visas will be issued to foreign high-level talents that China needs and to specialized talents that are urgently needed due to short supply. (State Council regs, arts. 6(9), 7(9)). The draft State Council regulations would have required that a provincial level department or higher make the determination that a foreigner qualifies (art. 9(9)), but that requirement was deleted from the final regulations. Before R visas can be issued, further rules will need to be issued–probably by the State Administration for Foreign Expert Affairs–to define their requirements and procedures. In the meantime, foreign experts will continue to apply for Z work visas under current rules.

Who needs a criminal background check?

The new law and State Council regulations don’t specifically require a criminal background check. In fact, while the draft State Council regulations required submission of a “certificate of no criminal conviction” at the visa application stage (art. 8), that was dropped in the final regulations (art. 7). Still, agencies have the power to create rules requiring a criminal background check. For example, the Beijing Municipal Bureau of Human Resources and Social Security has announced that employment license applicants will need to submit a “certificate of no criminal conviction” (also known as a police clearance letter) from their country of residence, effective July 1. Beijing joins other cities, such as Suzhou and Nanjing, which already have similar requirements in place.