China visa laws are getting tougher, but are they really effective at fixing illegal working, or do they actually encourage more of it?
It is estimated that 2/3rds of foreigners working in China are doing so illegally. The question really is why is that number so high?
The current laws and system in place holds the foreigner wholely accountable for their employment situation. Employers face fines for employing illegally, but the foreigner gets deported and banned from China altogether. This doesn’t sound necessarily so bad on the surface, but it belies the truth of what happens frequently.
A foreign teacher with all the proper qualifications can still be deported for working illegally for a number of reasons.
1) Address on visa inconsistent with working address. This means that a company with multiple schools can put the wrong address on the foreigner’s visa, or even ask them to go to another location for one day and it is the foreigner who is guilty of illegal employment.
2) The company puts the wrong work designation on the visa/permit. This means a fully qualified teacher can be listed as a manager and thereby deported because their designated employment did not match their actual work.
3) The company hiring the foreigner lacks the proper licensing to operate as a school. This company will not be shut down, but the foreign teacher can and often is deported regardless.
There is also an incentive to trick foreigners into illegal employment. In one scam, a teacher is hired and given the improper designation. Then, after a couple of months with a salary delay, a sudden report to immigration gets the school a bonus for handing in illegal teachers. Mind you, the teacher is qualified under the law, but was given an improper visa. Everyone makes a few RMB from the teacher’s work (not paid) and the financial incentive to turn them in for illegal employment. The teacher is then deported and barred from returning.
Even the police are aware of these scams, but they have little if any sympathy. In their mind, it is the foreigner’s responsibility to ensure the legality of their employment.
But what happens in these situations? Why not report it immediately? The answer is that once you report your “illegal activity” it is YOUR illegal activity. Not the company. In the best-case scenario, the police cancel your visa and you still have to leave. In the worst-case scenario, you are deported. Either way, you are without a job. The only feasible way to handle this situation is to try to keep your employer happy while you seek out legitimate work.
While some will argue that ignorance is not an excuse, I would agree. However, if you go to the bar and order a drink and someone puts a drug in it… later you test positive for… are you innocent or guilty of unknowingly taking a controlled substance? If you’re guilty, there are a lot of date rape victims you should talk to. The same is true of employers here in China. Foreigners need to extend a certain level of trust in order to make it. It is that dependence that these employers take advantage of. Most, especially newcomers, cannot read Chinese and even if they were able, would still have a difficult time navigating the visa process on their own. Furthermore, it is generally understood that this is the employer’s responsibility to provide a legal permit. Yet it still falls on the foreigner to have it.
The basics come down to this: Unless China takes its laws seriously in a direction to actually end illegal employment and corruption, unless China protects those that actually are qualified and unless China holds the employer equally accountable for their role in things, illegal employment will continue to exist and no one will truly respect the laws.
My suggestions to correct these occurrences is this:
1) Do not automatically deport otherwise qualified teachers for something that is reasonably a fault of their employer (wrong visa designation, improper work location, improper licensing). Instead of deporting this teacher, their work unit should bear full responsibility for the illegality of the situation…meaning, the foreigner is permitted to stay for the remaining time on their visa, at the expense of the hiring company, but not permitted to return to that company (except in cases of improper location which should be reasonably fixable) During this time the foreigner has the option of finding a new employer or leaving of their own accord.
This encourages qualified teachers and foreigners to report illegal companies.
2) Severely fine these companies doing this. Fines should be in the range of up to 100% of the previous year’s gross earnings (depending on the seriousness of the infraction and reoccurrence). This makes it highly unprofitable to hire people illegally at all.
3) Allow for the arrest of responsible management of the company and detention of up to five years in jail (note, under normal deportation circumstances, this is how long an average ban from China lasts)
Whatever happens, China needs to approach the root of the problem, not the symptoms. China wants to attract high talent, but highly talented individuals fear there is no real protection for them. Let alone the people at the bottom. I commend China’s efforts to protect its people and economy, but if the Chinese truly wish to be global, its time they started respecting and giving rights to the foreigners within its country. Most of us truly wish to contribute to a harmonious society. Many of us have felt demonized and tricked into breaking laws in a country we aren’t familiar with. So in the very least, protect those qualified individuals you so desperately say you want (and don’t think that because you offer an A-class visa that I am not watching how the Bs and Cs get treated). Rights should apply to anyone legally qualified to be here.