Sending Your Employee To China Again And Again. What If The Well Runs Dry?

Mega law-firm Mayer-Brown (f/k/a Mayer, Brown and Platt) just did what it calls a “bite-size” article on foreigners working in China for the home office. The article asks and then answers the following question:

If a foreigner will not be employed by any PRC company, and will frequently travel to the PRC as an employee of a foreign company to deal with business in the PRC, does he/she need to obtain a work permit from the PRC authority?

The answer given is that, generally, foreigners who enter the PRC for business can enter with a business visa and do not need a work permit so long as they stay three months or less. A work permit and work visa are, however, required if the foreigner “will work in the PRC for three months (not stated to be continuously, but generally considered as being cumulatively) or more, unless he/she will act as an engineer or other professional under a sino-foreign technology transfer agreement.”

The article then talks about how a PRC entity is required to employ the foreigner if the foreigner is going to stay in China for more than three months. If the foreign company has no legal entity in the PRC and needs to have its foreign employee frequently travel to the PRC for business development purpose, the article suggests the foreign company “consider having a [China-based] business partner fulfil the relevant application and filing obligations.

This is all good advice. I see this problem most often with foreign businesses that get a big contract in China requiring it send a bunch of its employees to China for 6 to 12 months. This company essentially has three options. It can convince its China partner to hire its employees and get them their work visa and work permit that way. It can form a WFOE in China to employ these people. Or it can try for multiple entry visas and hope the Chinese government looks the other way at someone spending too much time in China without a work visa or a work permit.

I have had clients do all three of these things. I usually recommend my client try to get its China-based partner to hire on its employees, but the China-based partner usually will not. I have to confess that when our clients ask us about hiring on temporary employees for others, they seldom do so after we tell them of all the risks involved in hiring anyone in China.

The big problem with forming a WFOE just to hire a few people for a temporary job is that it is time consuming and expensive. The big problem with shuttling employees back and forth into and out of China on 1-3 month business visas is the chance some or all of them will not be allowed back in. China does have its periodic visa crackdowns and visa tightenings and a whole host of our clients encountered major problems when China really cracked down hard before the Olympics. We had one very profitable client who literally had to close down because it was denied entry visas for so many of its key people.

The question I pose to my clients thinking of taking the 1-3 month business visa risk is, how big a disaster would it be for your company if you had to pull out of the contract half way through it because you can no longer get your people into China?  I estimate around half take the risk and around half form the WFOE. 

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