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15 July 2015

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Notice of Printing and Distributing Implementation Measures of Hunan on Rules for the Administration of Employment of Foreigners in China

Issuing Authorities: Department of Labor and Social Security of Hunan Province, Public Security Bureau of Hunan, Foreign and Overseas Chinese Affairs Office of the People’s Government of Hunan Province, Hunan Province Foreign Trade and Economic Cooperation Department 

Issuing Date: February 22, 2002  

Legal Reference Number: No. 49, 2002, Department of Labor and Social Security of Hunan Province  

Implementation Date: February 22, 2002  

   

To Ministries of Labor and Social Security, Ministries of Public Security, Foreign and Overseas Chinese Affairs Officesand Ministries of Foreign Trade and Economic Cooperation of Cities and Prefectures of Hunan ProvinceDepartments, Ministries, Committees, Bureaus and Corporations Directly under Hunan Province:  

   

For the purpose of strengthening the administration of employment of foreigners in Hunan, regulating relevant behaviors such as employment, recruitment and residence, and protecting foreign employees in Hunan and their employers in accordance with the law to boost economy development of the province, Measures of Hunan on Rules for the Administration of Employment of Foreigners in China is formulated jointly by Department of Labor and Social Security of Hunan Province, Public Security Bureau of Hunan, Foreign and Overseas Chinese Affairs Office of the People’s Government of Hunan Province, and Hunan Province Foreign Trade and Economic Cooperation Department, with the approval of relevant sections and in accordance with Law of the People’s Republic of China on Employment Contracts and Rules for the Administration of Employment of Foreigners in China (Document No. 29, 1996 of Ministry of Labor and Social Security ). Here is the printed version distributed to you, please conscientiously comply with and implement the provisions.    

   

Attached File:

Implementation Measures of Hunan on Rules for the Administration of Employment of Foreigners in China  

Implementation Measures of Hunan on Rules for the Administration of Employment of Foreigners in China  

   

Chapter l General Provisions  

   

Article 1 These Measures are formulated in accordance with Law of the People’s Republic of China on Control of the Entry and Exit of Aliens and Rules for the Administration of Employment of Foreigners in China promulgated jointly by the Ministry of Labour, Ministry of Public Security, Ministry of Foreign Affairs and the Ministry of Foreign Trade and Economic Cooperation of the People's Republic of China (Document No. 29, 1996 of Ministry of Labor and Social Security) with the practice of Hunan Province integrated for the purpose of strengthening the administration of employment of foreigners in Hunan and protecting foreign employees in Hunan and their employers in accordance with the law.  

   

Article 2 The term "foreigners" in these Measures refers to the persons, who under the Nationality Law of the People's Republic of China, do not have Chinese nationality.  

   

The term "employment of foreigners in Hunan" in these Measures refers to acts of foreigners without permanent residence status to engage in remunerative work within Hunan Province in accordance with it laws.  

   

Article 3 These Measures shall apply to employed foreigners within Hunan Province and their employers.  

   

These Measures shall not apply to foreigners who enjoy diplomatic privileges and immunities employed by foreign embassies or consulates, or the offices of the United Nations and other international organizations in China.  

   

Article 4 Specialized institutions set up by Department of Labor and Social Security of Hunan Province are responsible for the administration of employment of foreigners in Hunan.  

   

Public Security Bureau of Hunan, Foreign and Overseas Chinese Affairs Office of the People’s Government of Hunan Province, and Hunan Province Foreign Trade and Economic Cooperation Department, with authorization from Ministry of Public Security, Ministry of Foreign Affairs, and Ministry of Foreign Trade and Economic Cooperation, are responsible for the administration of entry, exit, residence, tour application and other relevant affairs of aliens.  

   

Chapter II Employment License  

   

Article 5 The employer shall apply for the employment permission if it intends to employ foreigners and may do so after obtaining approval and the People's Republic of China Employment License for Foreigners.  

   

Article 6 The post in Hunan to be filled by the foreigner recruited by the employer shall be the post of special need, a post that cannot be filled by any local candidates for the time being and violates no government regulations.  

   

No employer shall employ foreigners to engage in commercialized entertaining performance in Hunan, except for the persons with "Permit for Temporary Commercialized Performance" approved by the Ministry of Culture.   

 

Article 7 Any foreigner seeking employment in Hunan shall meet the following conditions:  

   

(1) 18 years of age or older and in good health;  

   

(2) with professional skills and job experience required for the work of intended employment;   

   

(3) with no criminal record;  

   

(4) a clearly-defined employer;  

   

(5) with valid passport or other international travel document in lieu of the passport (hereinafter referred to as the "Travel Document")  

   

Article 8 Foreigner seeking employment in Hunan shall hold the Employment Visas for their entry (In case of agreement for mutual exemption of visas, the agreement shall prevail), and may work within Hunan Province only after they obtain the Employment Permit for Foreigner (hereinafter referred to as the "Employment Permit") and the foreigner residence certificate.   

   

Foreigners who have not been issued residence certificate (i.e. holders of F, L, C or G type visas), and those who are under study or interim programs in China and the families of holders of Employment Visas shall not work in Hunan. In special cases, employment may be allowed when the foreigner, with the Employment License secured by his employer in accordance with the clearance procedures, changes his status at the public security organs and receives his Employment Permit and residence certificate.  

   

Article 9 The Employment License and the Employment Permit shall be designed and prepared exclusively by the Ministry of Labour and Social Security, and shall be issued by specialized institutions set up by Department of Labor and Social Security of Hunan Province (Hereinafter referred to as the Certificate Office) .  

   

Foreigners may be exempted from the Employment License and Employment Permit when they meet any of the following conditions:  

   

(1) Foreign professional technical and managerial personnel employed directly by the government or those with senior technical titles or credentials of special skills recognized by their home or international technical authorities or professional associations to be employed by Chinese government organs and institutions and foreigners holding Foreign Expert Certificate issued by China's Bureau of Foreign Expert Affairs;  

   

(2) Foreigner who conduct commercialized entertaining performance with the approval of the Ministry of Culture and hold "Permit for Temporary Commercialized Performance";  

   

(3) Foreign workers with special skills who work in offshore petroleum operations without the need to go ashore for employment and hold "Work Permit for Foreign Personnel Engaged in the Offshore Petroleum Operations in the People's Republic of China";  

   

Article 10 Foreigners may be exempted from the Employment License and may apply directly for the Employment Permit by presenting their Employment Visas and relevant papers after their entry when they meet any of the following conditions:  

   

(1) Foreigners employed in China under agreements or accords entered into by the Chinese government with foreign governments or international organizations for the implementation of Sino-foreign projects of cooperation and exchange;  

   

(2) Chief representatives and representative of the permanent offices of foreign enterprises in Hunan.  

   

Chapter III Application and Approval  

   

Article 11 The employer when intending to employ a foreigner, shall fill out the Application Form for the Employment of Foreigners and submit it to the industry administrative authorities together with the following documentation:  

(1) application letter for the employment of foreigners;  

(2) the letter of intention for employment;  

(3) certificates of the foreigner’s job experiences and education background;  

(4) the credentials of the foreigner required for the performance of the job;  

(5) the health certificate of the foreigner to be employed;  

(6) other documents required by regulations.  

   

Article 12 The Certificate Office should, considering views of the company’s industry administrative authorities and demand conditions of the labor market in Hunan, grant the license to the employer after its application for the employment of foreigners is approved.  

   

To employ foreign staff, central units in Hunan or companies without the industry administrative authorities shall go through the Employment License formalities with the Certificate Office; foreign-invested enterprises shall take to the Certificate Office the contracts, Articles of Incorporation, approval certificates, the Business License, and documents required by Article 11 of these Measures to apply for the license; and foreign chambers of commerce shall take to the Certificate Office the Employment Letter of Intention, Articles of Chamber of Commerce, Registration Certificate issued by the civil administration departments, and views of the foreign trade and economic cooperation departments and the civil administration departments on the employment of the foreigner to apply for the license.    

   

Article 13 Foreigner with permission to work in Hunan should apply for the Employment Visa at the Chinese embassies, consulates and visa offices, bringing with them the Employment License issued by the Certificate Office, the visa letter sent by Foreign and Overseas Chinese Affairs Office of the People’s Government of Hunan Province and the valid passport or Travel Document.  

   

Article 14 Foreigners who only invest in Hunan but are not directly involved in the enterprise operation and management are not considered being employed in China and do not hold Employment Visas while those who are directly involved in enterprise operation and management and hold management positions in the enterprises should go through employment formalities according to these Measures.  

   

Article 15 Chief representatives and representatives of the permanent offices of foreign enterprises in Hunan without the Employment Visa for their entry shall apply for the Employment Visa and the Employment License, bringing with them Registration Certificate of the Permanent Offices of Foreign Enterprises and Work Certificate of the Permanent Offices of Foreign Enterprises.  

   

The following foreigners who have applied for employment and granted with the exequatur but without the Employment Visa for their entry, if unable to exit for reapplication of the Employment Visa due to special conditions, shall, after an identity change through taking to the public security organs the exequatur, apply for the Employment License with the Labor Department and then apply for the residence certificate with the Public Security Department bringing with them the Employment License:  

   

(1) staff engaged in technical work as stipulated by the contracts of foreign projects;  

   

(2) staff engaged in the installation, test and maintenance of the employer’s imported equipments for less than a year;    

   

(3) foreign investors, legal representatives, or foreign senior managers (i.e. foreign general managers, deputy general managers, factory directors, deputy factory directors) of foreign-invested enterprises who are resident in Hunan and are engaged in the enterprise operation and management  

   

Article 16 Foreign workers of the permanent offices of foreign tourism departments in Hunan to be employed in Hunan shall go through employment and residence formalities of Hunan province in accordance with these Measures, and Chinese workers sent by foreign tourism departments shall apply for the Employment License at the Certificate Office bringing with them representative confirmation formalities and the Employment Visa.    

 

Article 17 Those who have obtained the Employment License and sent the visa correspondences to the authorized corporations but without the Employment Visa for their entry, or those who entrust others with applications for the Employment Visa (with no entry stamp) while they are already in China shall not be granted with the Employment License.  

   

Article 18 The employer should, within fifteen days after the entry of the employed foreigner, take to the Certificate Office the Employment License, the labour contract with the said foreigner and his passport or Travel Document to receive his Employment Permit while filling out the Foreigner Employment Registration Form.  

   

Article 19 Foreigners who received their Employment Permit should, within thirty days after their entry, apply for the residence certificate with the local public security organs bringing with them their Employment Permit. The term of validity of the residence certificate may be determined in accordance with the term of validity of the Employment Permit.  

   

Chapter IV Labour administration  

   

Article 20 Foreigners who apply to work in Hunan should honestly answer inquires concerning the employment from the Certificate Office, and those who are approved to work in Hunan should receive the necessary legal education from the Certificate Office.  

   

Article 21 The employer and its foreign employee should, in accordance with law, conclude a labour contract, the term of which shall not exceed five years. Such contract may be renewed upon expiration after the completion of clearance process in accordance with Article 23 of these Measures.  

   

Article 22 If the foreigner changes his position, passport number, nationality or residence during his employment, the employer should bring the relevant evidence to the Certificate Office to go through formalities for the change of the Employment Permit.  

   

Article 23 The Employment Permit of the employed foreigner shall cease to be effective upon the expiration of the term of the labour contract between the foreigner and his employer. If renewal is required, the employer should, within thirty days priors to the expiration of the contract, submit an application to the Department of Labor and Social Security of Hunan Province for the extension of term of employment, and after approval is obtained, proceed to go through formalities for the extension of the Employment Permit.  

   

Article 24 The employer of the foreign employee in China shall be the same as specified in his Employment License. The foreigner is not allowed to engage in part-time work for other companies unless being sent by the foreign investor to work simultaneously for several enterprises funded by the same investor, only one of them could apply to proceed the employment formalities for him.     

   

When the foreigner switches employers but stays in a job of the same nature, the change must be approved by the original Certificate Office and formalities of change should be gone through. If the foreigner swithches from enterprices beyond Hunan province, he mustbringing with him the evidence of change formalities with him, go through new employment formalities in Hunan.  

   

Article 25  The foreign employee should, within ten days after obtaining the approval for extension of his term of employment in Hunan or the change of his employment location or his employer, go through formalities for the extension or change of his residence certificate at the local public security organs.  

   

Article 26 After the termination of the labour contract between the foreign employee and his employer, the employer should promptly return the Employment Permit and the residence certificate of the said foreigner to the original Certificate Office.  

   

Article 27 The wage paid to the foreign employee by the employer shall not be lower than the minimum wage in the locality.  

   

Article 28 The working hours, rest and vacation, work safety and hygiene as well as the social security of the foreign employees in Hunan shall follow the relevant provisions of the state.   

   

Article 29 For foreigner whose residence status is revoked by public security organs due to his violation of Chinese law, his labour contract should be terminated by his employer and his Employment Permit be withdrawn by the Certificate Office.  

   

Article 30 Should the labour disputes arise between the employer and its foreign employee, they should be handle in accordance with the Labour Law of the People's Republic of China and the Regulations of the People's Republic of China on Settlement of Labour Disputes in Enterprises.  

   

Article 31 The Department of Labor and Social Security of Hunan Province shall conduct an annual inspection of the Employment Permit. Within thirty days prior to the end of every year of employment of the foreigner, the employer should go through formalities of the annual inspection at the Certificate Office. The Employment Permit shall automatically cease to be effective when the deadline is passed.   

   

In case of loss or damage of the Employment Permit, either by his employer or himself, during the term of his employment in Hunan, the foreigner should promptly report it to the original Certificate Office and go through formalities for the issuance of the Employment Permit. And the loss should be announced in the newspaper, either Hunan Daily or Sanxiang City Express.    

   

Chapter V Penalty Provisions  

   

Article 32 Violation of theses Rules, i.e. foreigners who work without the Employment Permit or employers which hire foreigner without the Employment License, shall be handled by the public security organs in accordance with Article 44 of the Rules Governing the Implementation of the Law of the People's Republic of China on the Entry and Exit of Aliens.  

   

Article 33 For Foreigner who refuse to have their Employment Permit inspected by the Department of Labor and Social Security of Hunan Province, change their employers and professions at will or extend their term of employment without permission, the Department of Labor and Social Security of Hunan Province shall withdraw their Employment Permit and recommend that their residence status be canceled by the public security organs. In case of deportation, the costs and expenses shall be borne by the said foreigners or their employers.  

   

Article 34 For foreigners and employers who forge, alter, falsely use, transfer, buy and sell the Employment Permit and the Employment License, the Department of Labor and Social Security of Hunan Province shall take over the Employment Permit and the Employment License in question. As stipulated in Article 30 of Rules for the Administration of Employment of Foreigners in China, illegal proceeds generated through these behaviors shall be confiscated and a fine between triple the proceeds and three hundred thousand RMB yuan shall be imposed; in case of no illegal proceeds, a fine below one hundred thousand RMB yuan shall be imposed. In serious cases which constitute a crime, their criminal responsibility of the perpetrators shall be looked into by the judicial authorities.  

   

Article 35 For a foreigner who provides fake documents to apply for the Employment Permit or proven unqualified to be employed after obtaining the Employment Permit, or employed by an employer to work for another companies, or who has gone through extension formalities of the Employment Permit after termination of his employment contract, administrative authorities of the Department of Labor and Social Security of Hunan Province may withdraw the Employment Permit of the mentioned foreigner and suggest the authorities of public security to cancel his residence permit.  

   

Article 36 In case of abuse of power, illegal collection of fees, and fraudulent practices on the part of official personnel of the Certificate Office, they shall be investigated in accordance with the law for their criminal responsibility if crimes are committed, or they shall be subject to administrative disciplinary measures if the cases do not constitute a crime.  

   

Chapter VI Supplementary Provisions  

   

Article 37 The employment in Hunan of the residents of Taiwan, Hong Kong and Macao region of China shall follow the Rules for the Administration of the Employment in the Mainland of the Residents of Taiwan, Hong Kong and Macao.  

   

Article 38 Individual economic organizations and private citizens are prohibited from employing foreigners.  

   

Article 39 The Department of Labor and Social Security of Hunan Province shall be responsible for the interpretation of these Measures.  

   

Article 40 These Measures shall enter into force upon the day of print and distribution.