Why Am I Considered to Be Illegal Stay?

Now Shenzhen   |   October 12, 2022

Among the four cities in Beijing, Shanghai, Guangzhou, and Shenzhen, Shenzhen always has the most relaxed work permit and residence permit (visa) policies, but in the recent two years, the visa policy has been gradually tightened. Recently, the time limit for the transference of work permit (WP) and residence permit (RP) to new company has been strictly limited, which has caught many foreigners and HR off guard. 

1. Real Cases

The followings are some real cases we met recently:

Three months 

Foreign employee A was judged to be illegally overstaying and fined 2000RMB because he did not transfer WP and RP to the new company after having left his previous company for more than three months.

Two months  

Foreign employee B left his previous company and applied for a new residence permit in new company two months later, and was asked to write a review letter before submitting his application for a residence permit.

Ten days  

Company C’s HR was called to Exit and Entry Administration for investigation after failing to cancel WP and RP within 10 days after the foreign employee’s departure.

Practice Changes This Year

2. Regulation

What is the regulation?

Law of the People’s Republic of China on Exit and Entry Administration

Article 33 The registration content of the foreigner residence permit include: the name, gender, date of birth, reason for residence, period of stay, date and place of issue, passport or other international travel document number, etc.

If the registration content of the foreigner’s residence permit changed, the holder shall apply for the change within ten days from the date of the change of the registration content to the Entry-Exit Administration of the local Public Security authorities at or above the county level of the place of residence.

3. Practice Comparison

Before  

Before, the company usually only cancels the WP and retains the RP after a foreign employee leaves the company so that the foreign employee can handle the departure matters or find a new job to transfer WP and RP directly to the new company. There is no strict requirement on the time interval.

Now   

Recent practice is that the company should cancel WP and RP within 10 days after the employee leaves the company and change the RP to a stay permit in accordance with the law. The previous company can also cancel the WP only and let the employee apply for a new WP and RP in the new company immediately after the cancelling WP, otherwise both the previous company and the foreign employee may be penalized or warned. If the employee has left the company for more than three months and has not cancelled the WP and applied for a new visa or a new RP, the employee will be considered to be illegal stay and will probably be fined.

Practice Changed

4. Strategy

Companies   

When a foreign employee leaves the company:

  1. If the foreign employee is ready to return to his/her home country: cancel the WP and RP within 10 working days.
  2. If the foreign employee finds a new job: cancel the WP within 10 days and tell the foreign employee to apply for a new WP and RP as soon as possible (preferably with specific time requirements) after getting the WP cancellation certificate.

When a foreign employee joins your company:

Ask for the foreign employee’s Release Letter and confirm the time of departure if a foreign employee joins your company from another company. It is better to go to Exit and Entry Administration and inform the details, and submit the application for work permit and residence permit in the system at the same time if it has been more than three months after departure.

Foreign employees  

  1. If you plan to leave China, you should consider whether you can handle everything with a 30-day stay permit before resigning.
  2. If you find a new job, you need to confirm whether the new company can handle the work visa transference procedure in time before you propose to resign.

5. Cancellation

Checklist for WP 

  1. Work permit cancellation application form (system exported);
  2. Release letter or termination certificate of employment contract;
  3. No meeting commitment letter (currently, Shenzhen can complete the whole process online, and the original work permit cancellation certificate will be mailed to the applicant or the company after the process is completed).

You only need to submit the color scans of the above three documents if you choose not to meet to apply; You need to submit the originals of 1 and 2 to the counter of the Foreign Experts Bureau if you choose to apply at the counter.

Processing time: about 5 working days.

Checklist for RP 

Checklist for cancellation of residence permit, i.e. apply for a stay permit.

  1. Application Form (paste a 2-inch blue color photo, which can be printed after appointment)
  2. Receipt for Digital Photo of Foreigners’ Visa in Guangdong Province, signed by the applicant.
  3. Valid passport or other international travel document.
  4. Registration Form for Temporary Accommodation of Foreigners;
  5. Residence permit and certificate of separation from the employer;
  6. Other supporting documents.

Processing time: 7 working days.

6. Documents from Previous Employer

Required in Shenzhen  

  1. Release Letter.
  2. Cancellation certificate of WP.
  3. Original work permit card (if the previous company is a Shenzhen company)

If the previous company is a non-Shenzhen company, the original work permit is not required.

Please confirm you can get the above documents if you want to transfer WP and RP to a Shenzhen company.