Reams of Paperwork: Preparing Documents to Get Official Status in China

Any foreign NGO seeking to register a representative office or file for a temporary activity in China must prepare a number of official documents in the location where it is headquartered. These documents must be notarized and authenticated (a process Chinese authorities refer to as “legalized” or “认证”) in the NGO’s home country. However, the steps for this process—particularly the order in which they should be completed, and the precise administrative requirements—are not clearly spelled out in any of the Ministry of Public Security’s (MPS’s) official guides. What follows are procedures for compiling the necessary documentation in the United States, based on the experiences of two individuals. Unless otherwise noted, the process below holds for both temporary activities and representative offices.

Please note that this article only reflects procedures in New York State. Procedures may differ slightly in other jurisdictions. This article is only meant to reflect the authors’ experiences and should not be considered legal advice. The authors and The China NGO Project appreciate any feedback on the process in other locations, both inside and outside the United States.

First Things First: Preparing Your Documentation

Once your foreign NGO has reached an agreement with a Professional Supervisory Unit (to establish a representative office) or with a Chinese Partner Unit (to carry out a temporary activity), you may begin to collect the relevant paperwork. The Foreign NGO Law requires that an organization provide a number of documents related to its legal status and financial situation in its home country, such as its articles of incorporation and audited financial statements. (Please note that the exact documentation required depends on guidance from the Public Security Bureau (PSB) in the location where the foreign NGO is registering or filing in China.)

There are four steps in the document notarization and authentication process (we will hereafter refer to documents that have been through this full process as “processed documents”). These must be done in the country where your NGO is headquartered. In the United States, these steps are:

1. Notarization of the documents by a licensed notary public;
2. Verification of the notary’s registration by the city or county clerk’s office;
3. Authentication of the notarization by your state’s Department of State (e.g. New York State Department of State);
4. Authentication (or “legalization”) by a Chinese embassy or consulate.

This process is onerous, but becomes more manageable with careful preparation. Be aware that the bureaucracies with which you interact in the course of registration and filing may not all have detailed knowledge of this process, or may not proactively provide detailed information. The Chinese Consulate in New York, for example, offers only limited information on its website.

Please note that each document must be notarized and authenticated individually. A notary cannot notarize a set of documents with one signature, and neither can authentication certificates (or “apostilles”) be issued for more than one document at a time. After completing the notarization and authentication process, each original document will thus be accessorized with the following attachments:

• one affidavit (notarized as described in Step 1, below, in addition to the notarized document itself);
• one page with the clerk’s license information (Step 2);
• one apostille from the local Department of State (Step 3); and, finally;
• one consulate stamp (Step 4) affixed to the first page of each submitted document with above described attachments.

As you complete each step in the process, a new page will be added to each document—with the notable exception of the final step, when the consulate will affix a stamp rather than a separate page.

After this process is completed, the processed documents will need to be translated, and the translation itself must be authenticated for accuracy by one of a few recognized authorities (the topic of a forthcoming post). Your Professional Supervisory Unit (in the case of registering a representative office) or your Chinese Partner Unit (in case of filing temporary activities) will also ask you to submit other signed documents, on a case-by-case basis, but those will not need to be notarized and authenticated.

It is important to bear in mind that all documents must be legible and in pristine condition (and, depending on the consular officer reviewing your documents, may also need to be single-sided). The Chinese consulate may reject out of hand any documents that have had staples removed, had pages torn off, include blank pages (intentional or otherwise), or could otherwise be suspected of having been marred or tampered with in some way. It is also important to know that documents authenticated by the embassy or consulate have an expiration date of three months from the date of authentication, though this technical requirement has been enforced arbitrarily.

It can be difficult to know which documents to your organization needs to prepare and how many of those need to be processed. A list of the documents your organization will need to prepare, as gleaned from written MPS guidance, is located in the sidebar (note: not all of these documents will need to be notarized and authenticated).

In our experience, it has proven helpful for organizations or their Chinese Partner Units to initiate communication with the MPS or PSB in advance, pursuing an informal document “pre-clearance” in order to avoid sending incorrect or incomplete reams of documents. However, no matter how much “pre-clearance” an organization obtains, it may still find that it is asked to provide additional documents at a very late stage in the process. Because, as noted above, Chinese consulate authentications expire after three months, you may need to re-authenticate documents that expired as you obtained any new documents. Ideally, the relevant PSB authorities or your Chinese Partner Unit will alert you if their document review is taking so long that you will need to get your documents re-authenticated with a later expiration date.

As an example, here are the processed documents one New York-based NGO collected (in duplicate) as part of its representative office registration application. Unless otherwise noted, all documents provided were processed copies of the English-language originals:

1. Official identity document (passport) of the proposed chief representative of the representative office;
2. Organizational Articles of Incorporation (this also included an accompanying letter from New York State attesting to the authenticity of the Articles, which the state provides automatically when it sends the requested Articles to you);
3. Amendments to the organizational Articles of Incorporation (demonstrating the organization’s change in name, and once again accompanied by a letter from the New York Department of State attesting to its authenticity);
4. Letter from the Department of the Treasury Internal Revenue Service confirming the organization’s nonprofit status;
5. Organizational charter (or bylaws);
6. Letter confirming the organization’s intention to establish a representative office in China (this was a cover letter addressed to the prospective Professional Supervisory Unit, not the official MPS application form; it was included in the application to demonstrate the NGO’s formal request to have the prospective PSU serve as its PSU, in addition to the application form itself);
7. Letter summarizing the main activities of the organization in the past two years;
8. Documents detailing and providing evidence (e.g., photos and screenshots) of main activities carried out in the past two years;
9. Statement attesting that the organization will adhere to the Foreign NGO Law in its financing of projects in China—that is, that the sole sources of income for the proposed representative office will be funds conferred to the office by the organization’s headquarters and interest earned on the office’s official bank account in China;
10. Copies of the organization’s audited financial statements from the past two years;
11. Bank statement from the organization’s headquarters.

Additional Chinese-language documents collected by this New York NGO, that required the signature of the prospective chief representative but did not require the full four-step processing, included the following:

1. Application to Establish a Foreign NGO Representative Office (Form 1)
2. Registration Form for Foreign NGO Representative Offices (Form 2)
3. Registration Form for Chief Representative of a Foreign NGO Representative Office (Form 3)
4. Declaration that Foreign NGO Chief Representative Has No Criminal Record (Form 4)

Once you have collected and copied all of your documents, you are ready to begin the notarization and authentication process. The total costs for this process in New York State (not including staff time and grey hairs) was between U.S.$63-66 per document. For each step in the process that you complete in person, bear in mind you may need to go through security, so be aware of what you bring along with you. Also, always verify the exact charge and methods of payment in advance, as they are subject to change.

For those interested in the minutiae of international civil law, this onerous process is required because China has not ratified the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (the “Apostille Convention”).

Step 1: Notarization by a Licensed Notary Public

All documents to be processed must first be notarized by a notary public. Notary public services are available at most banks or post offices (usually for a fee, though free notary public services are usually available at the bank where your NGO has an account). You may also pursue the services of a lawyer notary. Some organizations opt to use lawyer notaries because it is possible to check in advance where the notary is registered (relevant to Step 2, below). It is also possible to get lawyer notary services pro bono, especially if your NGO has lawyer notaries on its board or among its network of supporters. Further, lawyer notaries are less likely to have conflicts of interest with regard to notarizing your NGO’s financial documents (for example, your bank may not be willing to notarize documents that it itself produced).

A lawyer or public notary will most likely require that the signature of the proposed chief representative (for representative offices) or main point of contact, for example your organization’s executive director (for temporary activities) be rendered in person. Therefore, you may wish to make an appointment with the notary when your representative can be present in person. The notary will also require that your organization’s signatory bring a signature-bearing form of identification. Some notaries may serve you on a walk-in basis, but some require that you make an appointment.

In some jurisdictions, such as New York State, notaries cannot “verify” the authenticity of a document itself—they can only notarize a signature or a statement that a given document is a true copy of the original. In these jurisdictions, the notary is actually only notarizing a statement by the NGO’s chief representative that the document is a true copy of the original; the notary is not attesting to the authenticity of the actual document.

When notarizing the document it is advisable to have your organization’s signatory and the notary public produce two signatures for each document: one directly on the document itself, either on the first or last page, and one on a separate affidavit to be submitted with the document. You can prepare one affidavit per document yourself by including both below sample statements on a blank piece of paper (no letterhead required).

Only staple the document to the affidavit when you are fully confident the document is in its final form. As mentioned previously, should you need to subsequently remove any staples, the Chinese consulate or embassy is likely to reject your document. The notary public will also require that the affidavit be stapled to the original document before signing it, to ensure it will not be affixed to some other document in the future. In addition, please note that it is strongly advised to staple the documents such that the staple is completely horizontal; documents stapled at an angle may be rejected by the consulate.

The reason for having dual signatures is simple: it satisfies the Chinese consulate’s or embassy’s often arbitrary requirements that signatures be affixed to the document itself (demonstrating that they were not simply stapled or attached to an unrelated or inaccurate document) and yet also contain a number of detailed pieces of information that might not easily fit otherwise, such as the date and location of the notarization act. Having two notarized signatures therefore covers all bases and will hopefully prevent difficulties later on in the process.

Sample text to precede the signature and date on the document itself and again on the affidavit is provided below:

“I, [INSERT NAME HERE], [INSERT NGO TITLE HERE], hereby state that the following document, “[INSERT DOCUMENT TITLE HERE],” is a true copy of the original.”

Once your organization’s signatory has signed these statements in the presence of the notary, the notary will then notarize the statements. Be aware that some organizations have encountered problems with Chinese consular staff related to notaries’ handwriting. To avoid similar issues, ask your notary to write any numbers very clearly, and use both a stamped seal (an ink stamp with the notary’s license number, license expiry date, and location of license registration) and an embossed seal (the actual seal of the notary) to make the documents look very official. The notary stamp must provide the notary’s name, county of licensure, license number, and the date when their notary commission expires. The notary must also provide a jurat, that is, the date and location of the act of notarization. The form language for the jurat is as follows, and should appear at a minimum on the affidavit if space is limited on the document itself:

“Sworn before me this [INSERT DATE] of [INSERT MONTH], [INSERT YEAR] at [INSERT LOCATION OF NOTARIZATION].”

Be sure that you can clearly tell the city or county where the notary was licensed, as you will physically need to go to the clerk’s office in that location to authenticate the notary’s license (Step 2, below). Therefore, it is advised that you first call ahead to ask where the notary was licensed, so you don’t find yourself having to make a trek to a clerk’s office that is located far away.

If you are not receiving notary services pro bono, check for the preferred method of payment for the notary’s services ahead of time—many notaries are restricted in the forms of payment they can receive. In New York, the cost per notarized document is U.S.$2-3.

STEP 2: Verification of the Notary’s Registration

Next, you must procure verification that your notary is indeed registered and licensed to serve as a notary. This means you must go to the city or county clerk’s office where the notary is registered. If you cannot find the appropriate information online, your notary should be able to tell you exactly where to go. (For New York City, basic information is available on the Office of the City Clerk’s website.) The clerk’s office will likely be located inside a state government building, so be mindful of what you bring with you as you may have to pass through a security check. Also be sure to bring photo identification.

The clerk’s office will certify that your notary is registered with the city or county and that the stamp he or she provided is the correct one as is on file. The New York County clerk does not require that you fill out any additional paperwork, but it is best to check in advance for your jurisdiction.

There, the clerk will staple a verification form to each set of documents, usually as the first page. If you are bringing more than one notarized document, it’s helpful to collate your documents in advance, pairing each original document with its respective affidavit.

Check for the preferred method of payment ahead of time, as this can vary widely. For example, the Kings County clerk does not accept credit or debit card payments, while the New York City clerk accepts all types of payment. The fee in New York for authentication at the county clerk’s office is U.S.$3 per document. After you have paid, you should be able to pick up your documents from the same place where you dropped them off (usually immediately after rendering payment).

STEP 3: State-level Authentication (or “Apostille”)

The relevant state or local authority must then authenticate the city or county clerk’s authentication from Step 2 (very meta, we know). In the United States, this is done at a state’s Department of State (not to be confused with the national-level Department of State, or the U.S. foreign ministry).

In the case of the New York State Department of State, they will affix an “apostille”—which is a separate form—to the top of each set of notarized documents. Before you go to New York’s Department of State, you can download the application form online and fill out the required information. New York’s application form requests information such as the number of forms to be submitted, the country where the document will be used (i.e., the People’s Republic of China), and the address of the organization requesting the apostille (i.e., the address of your NGO’s headquarters). The apostille application and the documents themselves may be submitted in person or mailed in. In New York, same-day pickup is usually possible for in-person submissions, unless you are submitting more than ten documents at once (though if the apostille office is not busy that day they may allow you to process more). If you have more than 10 documents, be prepared to submit them separately in batches of 10 or fewer.

The New York State Department of State charges U.S.$10 per document for apostille services. They accept only checks or money orders. Further, they accept a maximum of U.S.$500 per check, so bring multiple checks or money orders if you’re submitting more than 50 documents. In-person pickup for a larger number of documents is possible within two to three business days.

STEP 4: Final Authentication by the Chinese Embassy or Consulate

When your documents have each been affixed with a state-issued apostille, you are ready to prepare your notarized and authenticated documents for a final round of authentication (also called “legalization” by the Chinese embassy) by a Chinese embassy or consulate. The embassies and consulates have a number of specific requirements related to your documentation, and in our experience are incredibly detail-oriented, so try and ensure absolutely everything about your application is in proper order before making the trip.

First, download and fill out an application form for authentication. Double-check that the form available online is the correct one or you will be turned away immediately from the consulate (at the time of writing, this form had recently been updated). The application form requires that you list the reason for pursuing authentication (e.g., “registration of a foreign NGO representative office”) as well a complete and accurate list of all documents being submitted. (Important note: if you run out of space to list all your documents, you must use a second application form, not an informal list.)

Next, prepare the documents for authentication. The Chinese embassies and consulates require that a photocopy of each and every page of each and every document be submitted along with the original (or in the case of documents that are already photocopies of the originals, a duplicate copy). This means a photocopy of the apostille, city or county clerk’s office authentication page, as well as the document itself and its accompanying affidavit. These will be kept on file by the consulate. [Update: Copies of each page of each document are no longer required. Now, in addition to the original document, you need only bring a copy of first page of each document bundle, i.e. the apostille page from Step 3. Updated instructions for the Chinese consulate in New York are available on its website.]

Finally, gather the other documentation you will need to have with you to have your authentication application accepted by the consulate. In addition to the notarized and authenticated documents (and photocopies of each), you must also bring:

1. A valid state-issued I.D. such as your passport or driver’s license, and a photocopy of that same I.D., which will be submitted along with the documents (this is required of both NGO employees submitting documents on behalf of their organizations or of hired agents submitting documents on an NGO’s behalf);
2. An extra copy of your organization’s business license or other incorporation documents (i.e., articles of incorporation and any amendments in case of an organizational name change—note that these do not need to be notarized or authenticated, but will be used instead to ensure the organizational information on the application form is correct);
3. A cover letter written and signed by your NGO’s leadership or proposed chief representative giving you authority to submit documents for authentication at the consulate (this is required of both NGO employees submitting documents on behalf of their organizations or of hired agents submitting documents on an NGO’s behalf);
4. For good measure, a photocopy of the I.D. or passport of the person who signed the above letter giving you authority to submit the documents.

When you speak with embassy or consulate staff, be prepared to answer some questions about your organization and your purpose for pursuing authentication. Avoid providing conflicting or confusing information. Be prepared to back up any of your answers with official documents. Once the consular officer is satisfied with your stated purpose and ability to present documents on behalf of the NGO, they will review the documents you are seeking to authenticate in great detail.

In our experience, this is where unanticipated problems tend to occur. One of the authors had the unfortunate experience of being told that the numbers “eight” and “six” as written by the notary public were not acceptable. When the same documents were submitted to a different consular officer the next day, however, the officer did not raise this objection. Instead, she rejected different documents for a different reason: that the staples of some of the documents were at an unacceptable angle. With this in mind, expect to spend a considerable amount of time at the consulate and be prepared to face the possibility that you may need to start all over from Step 1 (the notarization process) if the consular officers deny your appeals. (Though given the arbitrary nature of the consulate’s approval process, you may consider resubmitting the documents on a different day to a different officer should your documents be rejected.)

Once all the documents have been accepted by the consulate, they will give you a ticket and tell you when to return to pick up the (ideally authenticated) documents; in our experience, this waiting period was five days. Payment is made upon pick-up. The consulate in New York charges U.S.$50 per document and accepts credit cards (Visa or Mastercard only), money orders, cashier’s checks, or company checks, though it is advised to double-check in case of any changes.

If fully authenticated, each document will now bear the seal of the Chinese consulate on the back side of the front page of each document set. If the consulate has determined that your documents are unacceptable for any reason, they will be returned to you at that time. If possible, try to ascertain the specific reason your documents were rejected before you leave the pick-up window. This will allow you to determine what you might do to rectify the issue, even if that means starting over from Step 1.

After you have received the authenticated documents, you are ready to have the documents professionally translated and submitted to your Professional Supervisory Unit or to your Chinese Partner Unit. Two copies of each requested document must be notarized, authenticated, translated, and submitted as part of the application process (for temporary activity filings, it is best to check in advance about the number of copies needed; two copies of the organization’s Articles of Incorporation are definitely required, but the required number of copies of other documents remains unclear). After you have received the authenticated documents, you will be ready to have the documents professionally translated, and the translations notarized for authenticity. You will then send each notarized, authenticated, and translated document to your Professional Supervisory Unit or Chinese Partner Unit to then send on to the Ministry of Public Security. Ensure with your Partner or Supervisory Unit that there are no further documents required, and prepare for a long wait as the application is processed and considered by the Ministry of Public Security.