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This post deals with the options for a Hong Kong Work Visa Holder who owns shares in a company but also intends to get enrolled in a full-time Masters Degree Programme

Hong Kong being the dynamic ‘all-things-to-all-people’ type of place it is, oftentimes, certain life circumstances here throw up immigration challenges that need to be considered carefully to ensure that you do not inadvertently run afoul of the law and end up doing things that are no commensurate with your formal conditions of stay.

This question presents a number of issues for consideration.

QUESTION

I have been working in Hong Kong for the past five years under an employment visa and need today to apply for a student visa as I am no longer employed by my current sponsor-employer of record during my studies (full-time Masters Degree programme) starting in August 2013.

However, I have recently established a company in Hong Kong and have shares in this company.

Please could you counsel me on if I can apply for a student visa under this condition?

Also, will my 16 months of studies count toward my permanent residency?

ANSWER

At first blush, this question appears kind of complicated. But, as you’ll discover as I work my way through the answer for you, it’s actually quite a straightforward situation. It will require you making a particular application to adjust your status, but, all things considered, it is quite straightforward.

So presently you hold an employment visa, and as an employment visa holder, if you are no longer working for your current employer, then you’re allowed to remain in Hong Kong until your current limit of stay expires, whereupon you’re expected to leave. However, if you wish to join in a full time course of study, then you will have to adjust your immigration status from sponsored employment through to student visa.

On the other hand, if it was a part-time course of study as an employment visa holder, you could participate in that part-time course of study without needing to make any further application to the Immigration Department at this time. And in fact, the immigration department generally don’t issue student visas for part-time courses of study. Sometimes they do, but generally they don’t. So what you’re left with is adjusting your status from sponsored employment through to student, and the grant of the student visa should be straightforward. And the university will no doubt assist you to that end  because it’s a kind of run of the mill process for them.

Now, getting to the meat and potatoes of your question, which is if you are presently holding shares in a Hong Kong company, will it preclude you from getting a student visa? Well, we need to take a step back in any event, and look at your ability to hold shares in a Hong Kong limited liability company while you’re an employment visa holder.

Now, in the current policy, it’s perfectly okay for you to make an investment into either a public company or you need a private company and hold shares, those vehicles, so long as you are not actively engaged in the management and direction of that business. So if effectively, what you’ve done is acquired the shares in the company, and then you started to do some trading, or you’re starting to effectively engage in proper business activity with a partner or by yourself, then you need to be aware that, in any event, you would have to make an application to the Immigration Department to join an assigned business that your current immigration status. And normally, if you’re an employment visa holder, this requires you to get the consent of your existing employer to do this. But given that you’re no longer working for your current employer, obviously you’re not in a position to go about making an application to join in a side business formally. Therefore, what you’re left with is a dichotomy because you can’t be a full time student and engage and manage a business; at the same time, Immigration Department are principally not going to allow you to do that.

Therefore, effectively, my advice to you would be to put on hold your plans for your business or training activity and concentrate on your studies full time. And then when you come out of your studies you can pick up the pace on your formal business activities, if indeed that’s what you’re planning to do.

In that regard, when you finish your student status upon graduation, you’ll be able to make an application under the immigration arrangements for non-local graduates, which effectively mean that without having to procure an employer sponsor or indeed notify the Immigration Department in any express terms what it is that you’re doing in the wake of your formal graduation from your student status, as it were.

Effectively what you can do is then embark on your own business activity if that’s what you plan to do through the company that you own. And, all of that activity effectively will  be allowed to occur within twelve months after you’re finishing your formal course of study.

So finish your student visa, get yourself an immigration arrangement for non-local graduates approval, that will then effectively, if I’ve done the mathematics right, give you about two and a half years from now, and that, as you can appreciate together with the five and a half years or so that you’ve been in Hong Kong five years as it were, is going to take you well past the seven year mark.

So when you are at the full seven years you can make an application for the right of abode and all the time that you’ve spent as a student and indeed subsequently as a holder of an  immigration arrangements non-local graduates visa, that will allow your continuous ordinary residence to be maintained at all times. So you’ll be able to adjust your status from temporary residence through to permanent residency and you’ll secure the right of abode.

So all things considered, you’re in pretty good shape, but what you need to be very mindful of is exactly what it is that you’re going to be doing in relation to the company that you hold shares in whilst you’re a student visa holder.

At the very, very least you need to make an application to the Immigration Department to get their permission to engage in any kind of business activity whilst you’re a student visa holder in relation to your own company. But my best advice is based on prior experience in this area, it’s just to put your head down, get on with your studies, adjust from student through to immigration arrangements for non-local graduates. No further recourse at that time to the Immigration Department for permissions to join in the business that you own shares of and, once you get to the seven year mark, you’ll be able to convert through to permanent residency.

And the issue of you holding shares in the company should never present itself as a problem. I hope that helps.

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