外国人在中国就业常见问题二

根据国家统计局公布的《第七次全国人口普查公报（第八号）》文件显示，截至2020年11月1日，在我国居留的港澳台居民及外籍人员合计1,430,695人，而其中以就业为目的在华居留的就有444,336人。伴随着来华就业的外国人不断增加，外籍人员与用人单位的劳动争议案件也呈现逐年上升的趋势。本专题系列将就笔者实务中接触的外籍人员与用人单位劳动争议的常见问题进行探讨。
According to the "Seventh National Population Census Bulletin (No. 8)" document released by the National Bureau of Statistics, as of November 1, 2020, there were a total amount of 1,430,695 Hong Kong, Macao, Taiwan residents and foreigners residing in China, of which 444,336 were staying in China for employment purposes. With the increasing number of foreigners coming to work in China, the labor dispute cases between foreigners and employers have also shown an upward trend year by year. This article will discuss the common questions of labor disputes between the foreigners and employers that the author has been asked in practice.
如果工作许可还在有效期内，能否直接换一份工作？
If my work permit is still within the validity period, can I directly change jobs?
《外国人在中国就业管理规定》第二十三条规定：“外国人在中国就业的用人单位必须与其就业证所注明的单位相一致。外国人在发证机关规定的区域内变更用人单位但仍从事原职业的，须经原发证机关批准，并办理就业证变更手续。外国人离开发证机关规定的区域就业或在规定的区域内变更用人单位且从事不同职业的，须重新办理就业许可手续。”
According to the Article 23 of the Provisions on the Administration of the Employment of Foreigners in China, “The employer of the foreign employee in China shall be the same as specified in his Employment License.
When the foreigner switches employers within the area designated by the Certificate Office but stays in a job of the same nature, the change must be approved by the original Certificate Office and recorded in his Employment Permit.
If the foreigner is to be employed outside the area designated by the Certificate Office or switch employer within original designated area while taking up jobs of a different nature, he or she must go through formalities for a new Employment License.”
实务中，对于前述“须重新办理就业许可手续”的处理又分为两种情况。外籍人员变更了工作单位和工作地，如工作岗位没有变动，且工作类居留许可仍在有效期内的（部分城市如上海、南京允许使用临时居留许可），则可以在取得原用人单位提供的离职证明、工作许可注销证明以及推荐信后，向新用人单位所在地的外国专家局申请办理新的工作许可；如果需要变更工作岗位的（如从市场经理职位转为教师），则无法直接完成转聘工作，需要外籍人员出境后重新申请新的工作许可。
In practice, the treatment of the above-mentioned "must go through formalities for a new Employment License" is divided into two ways. If the foreigner switch employer and the working area, as long as the job nature has not changed and the work residence permit is still within the validity period (some cities such as Shanghai and Nanjing allow the use of temporary visa), they can apply for a new work permit from the foreign expert bureau where the new employer is located after obtaining the three letters provided by their former employer (the release letter and work permit cancellation letter and recommendation letter); if the foreigner want to change their job nature(such as from the position of market manager to a teacher), the transfer cannot be completed directly. Generally, the foreigner has to reapply for a new work permit after leaving the country.
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