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Non Sequitur
Joined: 23 May 2010
Posts: 4724
Location: China
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 Posted: Sat Dec 14, 2013 8:01 am Post subject: |
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| roadwalker wrote: |
| If the teacher is qualified for a work visa, and the school is authorized to sponsor a teacher on a work visa, there really is no reason to come to China on any other visa. Why limit your options in the future? True, the process can drag on at times, even when everyone all around is qualified. But once you go down the short-cut route, it may be difficult to avoid bad consequences in the current job, and in the future. If you are not qualified anyway, well, take your chances. But have a backup plan and $ resources to leave a bad situation, should it become necessary. |
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Prof.Gringo
Joined: 07 Nov 2006
Posts: 2236
Location: Dang Cong San Viet Nam Quang Vinh Muon Nam!
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| Posted: Sat Dec 14, 2013 8:45 am Post subject: |
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| teenoso wrote: |
| edbuch wrote: |
| Just as a matter of interest. what if you have a legal work permit but get fed up with your employer and just leave but stay in China. Assuming you don't want to get another job in China, can you just stay as long as you want and go in and out the country on your work permit until it expires? I expect the school will cancel your work permit but would anyone know that? |
This has come up before and it seems unclear what would happen. If they cancel your work permit, because the Residence Permit in your passport is tied to the employer, your RP may also be cancelled. But this would only show up when you leave China, and then you might need tp pay a fine, or be put on a 'visa' blacklist for overstaying.
I guess it is your responsibilty to make sure you have a legal visa at all times. |
I know a teacher who left his previous employer, not sure the circumstances, but his residence permit was still "valid" except it wasn't. He went a few months later to switch it over, in another place (from a provicne to BJ) and when he did so, he was told he was illegally in China and he had 10 days to leave, or be forced to leave. He left, paid a hefty fine and he was allowed to re-enter the PRC on a new Z-visa for the new employer. |
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Prof.Gringo
Joined: 07 Nov 2006
Posts: 2236
Location: Dang Cong San Viet Nam Quang Vinh Muon Nam!
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| Posted: Sat Dec 14, 2013 8:47 am Post subject: |
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| Non Sequitur wrote: |
| teenoso wrote: |
| edbuch wrote: |
| Just as a matter of interest. what if you have a legal work permit but get fed up with your employer and just leave but stay in China. Assuming you don't want to get another job in China, can you just stay as long as you want and go in and out the country on your work permit until it expires? I expect the school will cancel your work permit but would anyone know that? |
This has come up before and it seems unclear what would happen. If they cancel your work permit, because the Residence Permit in your passport is tied to the employer, your RP may also be cancelled. But this would only show up when you leave China, and then you might need tp pay a fine, or be put on a 'visa' blacklist for overstaying.
I guess it is your responsibilty to make sure you have a legal visa at all times. |
If your visa has expired on the immigration system even though your passport hasn't been changed, aren't you liable for the daily over stayer fee?
Could be a shock if you've spent all your money. |
As I understand it, yes. A F/T has only 2 weeks to switch the residence permit over... Or can one obtain a L-visa again? I hope somebody else will chime in on this one... |
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Prof.Gringo
Joined: 07 Nov 2006
Posts: 2236
Location: Dang Cong San Viet Nam Quang Vinh Muon Nam!
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| Posted: Sat Dec 14, 2013 8:50 am Post subject: |
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| Bud Powell wrote: |
| NoBillyNO wrote: |
| Quote: |
| More than a handful of folks read these forums, as the post and it's questions are written they are clear enough, and other foreign teachers can and have found themselves in the same situation. |
It is not clear what kind of situation you have found yourself in. |
The employer broke his contract. That's his situation. It's in his original post.
The OP asked for opinions regarding recourse, not for a trial. |
The employer broke the contract by not obtaining a valid Z-visa and begging the F/T to enter China on a "L-Visa" with promises that could be easily extended (it wasn't) and that a Z-visa would be forthcoming (it wasn't) and the F/T is responsible the costs and lost wages of lame visa runs.
The problems start with that, and continue beyond those visa issues. Enough said. |
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Non Sequitur
Joined: 23 May 2010
Posts: 4724
Location: China
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| Posted: Sat Dec 14, 2013 8:28 pm Post subject: |
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| Prof.Gringo wrote: |
| Bud Powell wrote: |
| NoBillyNO wrote: |
| Quote: |
| More than a handful of folks read these forums, as the post and it's questions are written they are clear enough, and other foreign teachers can and have found themselves in the same situation. |
It is not clear what kind of situation you have found yourself in. |
The employer broke his contract. That's his situation. It's in his original post.
The OP asked for opinions regarding recourse, not for a trial. |
The employer broke the contract by not obtaining a valid Z-visa and begging the F/T to enter China on a "L-Visa" with promises that could be easily extended (it wasn't) and that a Z-visa would be forthcoming (it wasn't) and the F/T is responsible the costs and lost wages of lame visa runs.
The problems start with that, and continue beyond those visa issues. Enough said. |
Still not sure if the employer has the right to hire foreigners but got the process wrong OR simply does not have the right and trying to cover over the problem with the L visa malarkey.
Have I missed something?  |
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teenoso
Joined: 18 Sep 2013
Posts: 365
Location: south china
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| Posted: Sun Dec 15, 2013 12:56 am Post subject: |
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it seems clear that if your visa is an 'L' , renewed in HK , but you are working here, then your 'contract' is not valid and therefore neither you , nor your employer, can break the contract. And so, there are no legal consequences or redress for either of you.
Home free, right?
Obviously if you are in the situation , get out as soon as possible. Police raids make great stories , but some are true , and lots of people get deported and blacklisted for illegal working. |
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JoeKing
Joined: 30 Apr 2008
Posts: 519
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| Posted: Sun Dec 15, 2013 1:09 am Post subject: |
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| Prof.Gringo wrote: |
The problems start with that, and continue beyond those visa issues. Enough said. |
PM sent! |
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NoBillyNO
Joined: 11 Jun 2012
Posts: 1762
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| Posted: Tue Dec 17, 2013 8:21 am Post subject: |
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| Quote: |
| it seems clear that if your visa is an 'L' , renewed in HK , but you are working here, then your 'contract' is not valid and therefore neither you , nor your employer, can break the contract. |
So contract law would depend on visa law and that is covered in contractual law as making a contract invalid. To be honest, not sure anyone here knows enough about chinese law to states this for certain, but in matters such as low wage earners it is unlikely it is worth the trouble. |
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Bud Powell
Joined: 11 Jul 2013
Posts: 1736
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| Posted: Tue Dec 17, 2013 3:38 pm Post subject: |
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If one is not qualified to enter into a work contract, the contract is non-binding. What would disqualify someone from entering into a work-for-pay agreement would be entering China on any visa other than a Z visa. Not having a resident permit would also disqualify someone from entering into a work-for-pay contract.
I'm no legal expert, but I understand the conditions of Chinese visas as they appear on consulate websites. |
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NoBillyNO
Joined: 11 Jun 2012
Posts: 1762
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| Posted: Wed Dec 18, 2013 12:22 am Post subject: |
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| Quote: |
| If one is not qualified to enter into a work contract, the contract is non-binding. |
That would depend on the type of contract and the and contract law.
| Quote: |
| Not having a resident permit would also disqualify someone from entering into a work-for-pay contract. |
RP's have nothing to do with the Labor Department and it is the work book one needs to have for employment while residing in the PRC but if a contract is valid or not can only be determined by the courts once a suit is filed. Contract law is never cut and dried as easily as many think... but as I have said.... before... FT's don't have the economic juice to demand the salary tht is likely to warrant a court battle. FT's much like Jail house lawyers can give information that is based on their own perceptions that allow them to justify their present position with the belief if they somehow ignore regulations as to legal employment it will in affect make any contract null and void. That would be nice to knowingly accept a contract that was voided by the type of visa one had, think of the type of fraud that any foreigner could get away with just by insuring they had entered on a tourist visa.....just guessing I think a court would look at the conditions that existed when a contract was signed and then decide if that contract was signed in good faith knowingly by the participants. Since as you have said all have access to the embassy website and therefore all have the resources to know what the regulations are and if they knowingly avoid the regulations to contract for a service or job, perhaps they would still be libel.... |
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Bud Powell
Joined: 11 Jul 2013
Posts: 1736
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| Posted: Wed Dec 18, 2013 2:58 am Post subject: |
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So you're saying that if an FT who entered China on an L visa , agreed to a work-for-pay contract and was considered by the state to be afoul of the law could sue to remain in China and continue working on that L visa if he had the wherewithal to fight the entity that is trying to deport him.
And likewise, if someone who enters into a work-for-pay contract while in China on an L visa could be compelled by the state to remain in China to fulfill the terms of the contract.
Do I understand correctly? |
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Non Sequitur
Joined: 23 May 2010
Posts: 4724
Location: China
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| Posted: Wed Dec 18, 2013 4:19 am Post subject: |
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| Bud Powell wrote: |
So you're saying that if an FT who entered China on an L visa , agreed to a work-for-pay contract and was considered by the state to be afoul of the law could sue to remain in China and continue working on that L visa if he had the wherewithal to fight the entity that is trying to deport him.
And likewise, if someone who enters into a work-for-pay contract while in China on an L visa could be compelled by the state to remain in China to fulfill the terms of the contract.
Do I understand correctly? |
Isn't it like the concept of capacity to contract?
Unless you're in China on a visa that permits working you have no capacity to enter into a binding (on both sides) contract.
In Western countries, minors and undischarged bankrupts have no capacity to enter into certain contracts.
But rights and wrongs aside does anyone believe a foreigner could get a judgement against a Chinese employer whether legal or not? |
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NoBillyNO
Joined: 11 Jun 2012
Posts: 1762
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| Posted: Wed Dec 18, 2013 7:20 am Post subject: |
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| Quote: |
So you're saying that if an FT who entered China on an L visa , agreed to a work-for-pay contract and was considered by the state to be afoul of the law could sue to remain in China and continue working on that L visa if he had the wherewithal to fight the entity that is trying to deport him.
And likewise, if someone who enters into a work-for-pay contract while in China on an L visa could be compelled by the state to remain in China to fulfill the terms of the contract.
Do I understand correctly? |
NO, when dealing with visa disputes one would need the cousel of a imigration attorney ..... if your named in a lwsuit, yes the authorities can require you to stay until judgement.
| Quote: |
Isn't it like the concept of capacity to contract?
Unless you're in China on a visa that permits working you have no capacity to enter into a binding (on both sides) contract. |
If your a not a minor you have the capacity. Working without a visa is against the labor departments and imigration regulations and could result in charges. Breaking the law does not exempt you from contract law...if and only if someone files a suit. NO employer of a FT who has violated visa requirements wants to go to court on working contracts. FT's simply dont make enough money...... |
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JoeKing
Joined: 30 Apr 2008
Posts: 519
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| Posted: Wed Dec 18, 2013 10:14 am Post subject: |
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| roadwalker wrote: |
| If the teacher is qualified for a work visa, and the school is authorized to sponsor a teacher on a work visa, there really is no reason to come to China on any other visa. |
I posted a response last night after midnight, but got up this morning at 6 and deleted it because I was paranoid I was giving too much information.
Anyway, the gist of what I said was this(you can read between the lines):
I believe in the "roadwalker rule". The "roadwalker rule" is valid for the average 6k per month contract being offered in China. But like most rules, there are exceptions, and without going into detail it has to do with Risk v. Reward. A well paying, low hours contract may be worth the risk to some. Every one has a different threshold of acceptable risk. That is all I will say about that.
On the other hand, in support of the "rule", I want to point out that even a "successful" Z visa run is difficult. No one has mentioned this yet. It entails a minimum of 2 days of travel on trains, planes, and subways packed like sardines, going through immigration twice, and likely 3 or 4 hours waiting at the building where the visa is processed. You may think you can cram some fun into your Hong Kong trip, but time constraints don't always allow for much of that. Your employer is going to want you back as soon as possible so you can start teaching again. And I am pretty sure they won't be putting you up in the Ritz-Carlton while you are there. Visa runs are not fun! Bear this in mind when you are considering coming over early!
On the other topic being discussed, contract law, I think you guys are really over thinking this. Yes, as Billy said, anything can happen with litigation. But seriously, what is the likelihood of an employer who illegally employed someone trying to take them to court? I think choudoufu said it best:
| choudoufu wrote: |
legal litigation? none to be had. the contract is not valid, cannot be enforced.
does an druggie call the cops when his coke is cut with baby laxative?
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NoBillyNO
Joined: 11 Jun 2012
Posts: 1762
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| Posted: Wed Dec 18, 2013 11:53 am Post subject: |
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| Quote: |
| Yes, as Billy said, anything can happen with litigation. But seriously, what is the likelihood of an employer who illegally employed someone trying to take them to court? |
As I have said many time, likely you don't warrant it as it would have to be a good deal of money to go through the trouble and by the way, when you enact a law suit, you don't call the cops, you call a solicitor. |
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