In general, every foreigner needs a visa to enter China unless otherwise provided by law. There are four categories of visas: diplomatic, courtesy, service, and ordinary. According to the rules for ordinary visas currently in effect, there are eight types of ordinary visas issued in accordance with the purposes of visits.
Chinese nationality law basically follows the principle of jus sanguinis. A foreign national or stateless person who is willing to abide by China’s Constitution and laws and who is a close relative of Chinese nationals, has settled in China, or has other legitimate reasons may be naturalized as a Chinese citizen upon approval of his application.
Foreigners illegally entering, staying, or working in China may be deported. Administrative punishments provided by the Exit and Entry Law include a warning, a fine, an order to leave China within a specified time, and expulsion from China. The Law also punishes Chinese citizens who assist foreigners in entering the country illegally, hide such foreigners, provide accommodations to them, or employ them.
The Exit and Entry Law expressly allows taking biological identification information, such as fingerprints, from people who exit or enter China. To provide for its border and coastal defense, China practices a system of sharing responsibilities between the military and civilian authorities and makes use of border control troops, border inspection stations, and the People’s Liberation Army border control units.
China is not a country that has traditionally attracted large numbers of immigrants. There is no comprehensive immigration and nationality statute in place. The 1980 Nationality Law has not been updated since its adoption. It contains only seventeen general articles, which govern the acquisition and loss of Chinese citizenship.
On November 22, 1985, the Standing Committee of the National People’s Congress adopted two laws to regulate the exit and entry of Chinese citizens and foreigners: the Law on the Control of the Exit and Entry of Citizens, and the Law on the Control of the Entry and Exit of Aliens (Aliens Entry and Exit Law). The Aliens Entry and Exit Law and its implementing rules have become the primary legal instruments regulating the entry and stay of foreigners in China.
Provisions regarding immigration are also found in regulations and rules issued by the State Council and relevant ministries, in particular the Ministry of Public Security and the Ministry of Foreign Affairs. For example, the rules on permanent residency were first officially introduced into Chinese law in 2004, when the Measures for the Administration of the Examination and Approval of Foreigners’ Permanent Residence in China were issued by the two ministries jointly. Employment of foreigners is regulated by the Provisions on the Administration of the Employment of Foreigners, jointly issued by several departments under the State Council in 1996.
In 1995, the State Council issued the Regulations on Frontier Exit and Entry Inspection, which governs the inspection of individuals and vehicles entering and exiting the border. The Ministry of Public Security in 2002 issued a set of Measures for Implementing Administrative Punishments in Frontier Exit and Entry Inspection, specifically regulating the punishments for border control violations by individuals and vehicles crossing the border.
New “Unified” Exit and Entry Law
The fast economic growth in the past three decades has brought in more international travelers than ever before, and along with them challenges to the immigration law system and border control. Official statistics show that a total of 1.46 million foreigners entered or exited China in 1980; the number jumped to 20.26 million in 2000 and then to 54.35 million in 2012, thus rising about 10% per year over the past decade. Meanwhile, the Ministry of Public Security reported that 2,614 foreigners were caught trying to illegally cross the border in 2012 alone.
As a response to the increasingly complex situation of both citizens and foreigners crossing the border, the Standing Committee of the National People’s Congress adopted the Law on the Administration of Exit and Entry (Exit and Entry Law) on June 30, 2012. The new Exit and Entry Law “unifies” the previous two laws in that it is applicable to
* the exit and entry of Chinese citizens and foreigners;
* foreigners’ stay in China; and
* inspections of vehicles crossing the border.
When it takes effect on July 1, 2013, the new Exit and Entry Law will replace both the Law on the Control of the Exit and Entry of Citizens and the Law on the Control of the Entry and Exit of Aliens. Other immigration regulations and rules are also expected to be updated by the State Council and the ministries in accordance with the authority granted by the Exit and Entry Law.
Overview of the Visa System
In general, every foreigner needs a visa to enter China unless otherwise provided by the Exit and Entry Law. There are four categories of visas: diplomatic visas; courtesy visas (issued to foreigners who merit courteous treatment because of their special status); service visas (issued to foreigners entering China for official service reasons); and ordinary visas.
The State Council is authorized by the Exit and Entry Law to formulate detailed rules for ordinary visas. Issuance of diplomatic, courtesy, and service visas are to be determined by the Ministry of Foreign Affairs. According to the rules for ordinary visas currently in effect, there are eight types of ordinary visas issued in accordance with the purposes of visits:
* D visa: issued to permanent residents;
* Z visa: work visa, issued to foreign workers and their accompanying family members;
* X visa: student visa, issued to students and others coming to China for training or internship for a period of six months or more;
* F visa: issued to persons invited to come to China to give lectures or for official visits; business, scientific, technological, or cultural exchanges, or short-term studies or internships lasting less than six months;
* L visa: issued to persons entering China for tourism, to visit relatives, or for other private purposes;
* G visa: transit visa;
* C visa: issued to crew members performing duties on board an international train or aircraft, and their accompanying family members; and
* J visa: issued to foreign journalists.
New Trend: Talent Visa
As part of China’s efforts in recent years to attract highly skilled talents, the new Exit and Entry Law adds “attracting talent” as one of the purposes for an ordinary visa. Accordingly, the State Council may add a new type of talent visa under the category of ordinary visa when the time comes to formulate new rules for ordinary visas in accordance with the Exit and Entry Law.
Citizenship and Permanent Status
Citizenship by Birth
Chinese nationality law basically follows the principle of jus sanguinis. According to the Nationality Law, a child born in China is a Chinese citizen if at least one of his parents is a Chinese citizen, or if his parents are settled in China and the parents are stateless or their nationalities cannot be determined. A child born outside China with at least one Chinese citizen parent is a Chinese citizen, unless the Chinese citizen parent has settled in a foreign country and the child has acquired foreign citizenship at birth. China does not recognize dual nationality. The Nationality Law states that after being naturalized as a Chinese citizen, a foreigner cannot retain his foreign citizenship.
Naturalization is possible under the Nationality Law, although in practice it is rare other than through marriage or a great contribution to the country. According to the Nationality Law, a foreign national or stateless person who is willing to abide by China’s Constitution and laws and who is a close relative of Chinese nationals, has settled in China, or has other legitimate reasons, may be naturalized as a Chinese citizen upon approval of his application.
In recent years, many foreigners obtained Chinese nationality in Hong Kong, where the Special Administrative Region (SAR) government has been accepting naturalization applications systematically since the establishment of the Hong Kong SAR in 1997. According to Hong Kong’s Secretary of Security, out of 15,518 applications received the Hong Kong SAR government has approved 12,658 foreigners to be naturalized as Chinese nationals.
The Hong Kong SAR government judges each naturalization application on its own merits, and considers the following factors in making a decision:
* whether the applicant has a near relative who is a Chinese national having the right of abode in Hong Kong;
* whether the applicant has the right of abode in Hong Kong;
* whether the applicant’s habitual residence is in Hong Kong;
* whether the principal members of the applicant’s family (spouse and minor children) are in Hong Kong;
* whether the applicant has a reasonable income to support himself/herself and his/her family;
* whether the applicant has paid taxes in accordance with the law;
* whether the applicant is of good character and sound mind;
* whether the applicant has sufficient knowledge of the Chinese language;
* whether the applicant intends to continue to live in Hong Kong in case the naturalization application is approved; and
* whether there are other legitimate reasons to support the application.
According to the 2004 Measures for Administration of the Examination and Approval of Foreigners’ Permanent Residence, the following categories of individuals may apply for permanent residency in China:
* investors who have made direct investments in China with stable operations and good tax payment records for three successive years;
* corporate executives, professors, and researchers who have held a post in China for at least four consecutive years, have been physically present in China for a minimum period of three cumulative years within the four years, and have good tax payment records;
* foreigners who have made great and outstanding contributions to China and those who are especially needed by the country;
* immediate family (spouse and unmarried children under the age of eighteen) of an individual mentioned in the previous three categories;
* a person who has been married to a Chinese citizen or permanent resident for at least five years, has at least five consecutive years of residency in China, is physically present in China for at least nine months each year, and has a stable source of livelihood and a dwelling in China;
* a Chinese citizen’s unmarried children who are under the age of eighteen; and
* a person aged sixty or older who is joining direct relatives in China, has no direct relatives overseas, has resided in China for at least five consecutive years, is physically present in China for at least nine months each year, and has a stable source of livelihood and a dwelling in China.
For investors, the Measures require a minimum registered capital actually paid to China in accordance with the industries and locations the investment goes to:
* US$500,000 in any industry encouraged by the State;
* US$500,000 in western China and any key poverty county as determined by the State;
* US$1 million in central China; or
* US$2 million in any other places in China accumulatively.
Illegal immigration has been spurred in recent years by an increase in foreigners coming to the country to seek employment and long-term stays. One of the focuses of the new Exit and Entry Law is to place restrictions on foreigners who illegally enter, stay, or work in China, rhetorically expressed as the “three illegals” (san fei). The public security organs (police) have launched campaigns to attack the “three illegals” in the big cities.
According to the Exit and Entry Law, foreigners illegally entering, staying, or working in China may be deported. Administrative punishments provided by the Exit and Entry Law include a warning, a fine, an order to leave China within a specified time, and expulsion from China.
Illegal entry, which includes entering China with forged exit-entry documents, with others’ exit-entry documents, or by evading border inspection will be fined between 1,000 and 5,000 yuan (about US$160–800); where circumstances are serious, theforeigner may be detained for five to ten days and fined up to 10,000 yuan.
Illegal Stay or Residence
Staying in the country illegally may provoke a warning from the government; where the circumstances are serious, the foreigner may be fined 500 yuan for each day of the illegal stay, up to a maximum of 100,000 yuan, or be detained for five to fifteen days, according to article 78 of the Exit and Entry Law. While many Chinese parents living outside the country send their foreign-citizen children back home to be cared for by their Chinese grandparents, the article contains a section specifically punishing guardians of foreign-citizen children illegally staying in China with a warning and a small fine (less than 1,000 yuan).
Alien workers employed in China without a proper employment permit or residence permit are deemed illegal by the Law and are subject to a fine. The Exit and Entry Law raises the fine from the current amount (under 1,000 yuan) to between 5,000 and 20,000 yuan. Where the public security organs deem the circumstances to be serious, the alien may also be detained for five to fifteen days.
A foreigner whose presence is deemed undesirable may be ordered to exit China within a specific time. If a foreigner violates the Exit and Entry Law but not seriously enough to be criminally punished, the Ministry of Public Security may order him expelled. The Ministry of Public Security has the final decision.
Sanctions Against Persons Helping Illegal Immigrants
The Exit and Entry Law also punishes Chinese citizens who assist foreigners in entering the country illegally, as well as anyone who hides such foreigners or provides accommodations to them. Such activities are subject to a fine up to 20,000 yuan and detention for up to fifteen days. Any illegal gains will be confiscated. Illegally employing aliens is subject to a fine of 10,000 yuan for each illegal alien employed, up to a maximum of 100,000 yuan, and any illegal gains are confiscated.
According to the Exit and Entry Law, foreigners upon entering China must submit their passports and visas to the border inspection organs for examination and go through prescribed formalities. Upon exiting the country, they must submit their passports for examination and go through prescribed formalities.
The above-mentioned formalities may include taking fingerprints, which is expressly allowed by the Exit and Entry Law. According to the Law, upon approval by the State Council, the Ministry of Public Security and the Ministry of Foreign Affairs may set forth regulations on taking biological identification information, such as fingerprints, from people who exit or enter China.
Border Protection Bodies
With regard to border and coastal defense, a 2010 white paper on China’s national defense stated that China practices a system of sharing responsibilities between the military and civilian authorities. The State Commission of Border and Coastal Defense, which is under the “dual leadership” of the State Council and the Central Military Commission (CMC), coordinates the nation’s border and coastal defenses.
Border Control Troops
The Public Security Border Control Troops (gongan bianfang budui), also known as the People’s Armed Police Border Control Troops (wujing bianfang budui), are the primary armed law enforcement body for China’s land and coastal borders. The troops are under the administration of the Border Control Department of the Ministry of Public Security.
The main responsibilities of the Border Control Troops are: border, coastal and maritime security administration; border inspection at ports; prevention of and crackdown on illegal and criminal acts in border and coastal areas, such as illegal border crossing, drug trafficking and smuggling; and organization of and participation in counterterrorist and emergency-management operations.
Border Exit and Entry Inspection Stations
The border control duties at major Chinese airports, seaports, and land border stations are taken on by the border exit and entry inspection stations, which are staffed with professional police. In 1998, the Ministry of Public Security introduced professional police into its border police force, which resulted in General Border Inspection Stations (chu ru jing bian fang jian cha zong zhan) being set up in nine major cities, these being Beijing, Tianjin, Shanghai, Guangzhou, Shenzhen, Zhuhai, Xiamen, Haikou, and Shantou.
The nine General Border Inspection Stations supervise the lower-level border inspection stations set up at the airports, seaports, and land border checkpoints in the nine previously mentioned cities. The General Border Inspection Stations are subordinate to the Bureau of Exit and Entry Administration of the Ministry of Public Security.
People’s Libration Army (PLA) Border Control Units
The PLA Border Control Units are mainly tasked with maintaining coastal and maritime security and safeguarding the borders against such activities as foreign intrusions, encroachments, and illegal border crossing, including at places where there are no ports or border inspection stations.