My Employer Won't Give Me My Transfer Documents
What are Work Permit Transfer Documents?
The "transfer papers" foreigners in China often refer to comprise of 2 documents:
Work Permit Cancellation Notice (issued to the employer by the Foreign Experts Bureau once a work permit has been cancelled)
Termination of Employment Letter (issued by the employer)
The reason foreign employees and their future employers want these two documents so badly is that they can be used to conveniently register a new work permit for an employee with the Foreign Experts Bureau.
What if my employer is withholding these documents from me?
Legal Position
China's Contract Labor Law was written for workers in China generally so does not properly deal with the subject matter of work permit transfer papers or other special documents / permits that apply to foreigners but not locals. This legal phenomenon has the unfortunate and unintended side effect of foreigners having no obvious legal recourse in cases when employers unfairly gain leverage over employees by withholding the two work permit transfer documents mentioned above.
Article 50 of China's Contract Labor Law requires employers to hand over an employee's certification for the termination of the labor contract (the second of the two documents listed above). However China's Contract Labor Law does not mention anything about an obligation for employers to give employees their work permit cancellation notice (the first of the two documents listed above). It can be argued that Article 50 also extends to work permit cancellation notices or that this document is classed as "other certificates" as per Article 84 and is therefore required to be given to the employee when they resign.
Based on the above two paragraphs, it can be concluded that work permit transfer documents are perhaps technically legally required to be given to an employee, however in practice it is very difficult, cumbersome and often not practical to leverage the law to get these documents from an employer.
Practical Steps for How to Change Jobs in This Situation
If you find yourself in this situation then do not lose hope - There are several ways of changing jobs despite the fact that your employer is withholding your work permit transfer documents.
It is very important to choose the correct strategy based on your particular situation as the authorities in different regions of China have different rules and practices which affects which courses of action are available in any given situation.
To learn which strategy is best for your situation, book a free 15 minute online consultation with us.