Caught Working in Hong Kong Without an Employment Visa?
If you’re working in Hong Kong (paid, unpaid or temporarily transferred in) but do not have an employment visa sponsored by your current employer you are breaking the law and could be subject to 3 years imprisonment and/or up to a HKD350,000 fine.
The law is very clear in this regard.
However, I also hear all kinds of likely ‘get out of jail free’ stories bounded about if ImmD or an officer of the Labour Department discovers an illegal worker during a routine or other workplace inspection.
What is not so commonly understood is the way the law is crafted here.
If you are found working in the premises or workplace of an employer and you do not have the permission of the Director of Immigration to take up employment with that employer, the law imputes an employment relationship and so your goose is cooked – automatically.
This is joining in a side business albeit in another name…and a solution for certain types of Hong Kong Employment Visa holders thinking about freelancing in Hong Kong
QUESTION
Info
-NZ Passport holder
-Working in Hong Kong for three years with an employer.
Hello
I would like to know how I would go about starting a business in Hong Kong. I would like to start a freelance business. I am worried about my visa with this if I sponsor myself.
Should I create my business now, and apply while I am with my current job to be safe?
ANSWER
This question really gives us an opportunity to discuss the possibilities of getting independent visa permissions for “freelance work” and, given the circumstances, as I understand them, the best possible way for you to bring about the outcome that you’re looking for, firstly, the thing to appreciate is that you presently have a Hong Kong employment visa sponsored by a third party employer.
If you wish to leave that employer and then go into business for yourself as a freelancer, as you state it, then you’re going to have to make an application for what’s known as a business investment visa. So you’ll be changing your category from sponsored employment through to business investment, and at that time you’ll have to show to the Immigration Department that you can make a substantial contribution to the economy of Hong Kong. Now, I’ve dealt with the elements of that approvability test elsewhere on the website, just do a search under business investment visas and you’ll find a lot of information about that.
The problem therein lies that you are going to be freelancer, which means it’s a one-man business, and such businesses normally are not in a position to make a substantial contribution to the economy of Hong Kong because there’s only one person ultimately going to be advantaged, that’s you as an individual freelancer.
So, I would urge you to look very hard and carefully at your plans to leave your employment and then go and start out working for yourself and making that application as a freelancer. Because unless you are in a position to create local employment opportunities, have a properly set up office and are particularly well resourced, you may find that the Immigration Department don’t buy into your argument and therefore you may not get the appropriate approval that you’re looking for. So, that really is probably the riskiest part of the proposition, as I understand it.
You can, on the other hand, take another path where you effectively maintain your current employment and, with the written permission of your existing employer, you request the Immigration Department to approve an application from you to join in a side business; and in doing those freelance activities on the side, the Immigration Department will arguably give you the approval that you’re needing. And, as I say, as long as you’ve got the permission of your current employer to be able to do that things should be okay.
So in summary, my best advice would be if you really are going into freelancing, in a sense, abandon the idea of being a self sponsored employee by getting a business investment visa.
I think it’s just probably too hard and possibly beyond your initial expectations of what you want to do commercially and how you go about earning a living and stick with the full time sponsored employment if it’s possible. Therefore, get the permission of your current employment visa sponsor to freelance on the side and then secure a business registration certificate as sole proprietor and then make an application to the Immigration Department for permission to join in the side business with your current sponsoring employer’s consent. That way you will be able to achieve your objectives, and at some stage in the future, you never know, your freelance business might grow to the point where you do need to create local employment opportunities and you are going to need independently a properly set up office and you might have the requisite resources in play, both financial and other commercial resources, to the extent that the time spent as a freelancer on the side could be a proving ground for a bigger application subsequently, where you would be able to pass the approvability test and show that you can make a substantial contribution to the economy of Hong Kong.
I hope you found that useful.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Where your proposed employer is a brand new company you can expect the Hong Kong Immigration Department to look very closely at the enterprise to make sure that it is in fact a suitable sponsor for your working visa permissions.
In many ways, the due diligence which the Hong Kong ID undertake is very much like that which they do for an investment visaapplication.
Essentially, then, they will examine your new employer’s bona fides to ensure that the business is positioned to make a substantial contribution to the economy of Hong Kong.
This will involve a requirement for dedicated business premises, the potential for, if not the actuality of, locally hired staff, good capitalization and the expectation of solid commercial activities in play which have led to the need to employ you, a foreign national, in the first place.
In fact, where a new sponsoring company comes forward seeking to employ a foreign national employee, and that business is less than 2 years old, you can expect a searching assessment of that entity for suitability as an employment visa sponsor.
And it is through this mechanism that the Hong Kong ID filter out contrived employment visa applications promoted by foreign nationals who are simply seeking to remain in the HKSAR, whatever the means.
So, not only must the job offer in question be a genuine one, it has to be extended from a credible employer all things considered.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Can any old entity successfully sponsor an employment visa extension under the Immigration Arrangements for Non-local Graduates? What qualifies a Hong Kong employer as a suitable and credible sponsor?
My company would need to help me to sponsor the IANG visa once my limit of stay is within 4 weeks of expiry.
I do understand that the remuneration for the job needs to be at the market level and the job should be commonly taken up by the graduates.
What I would like to know is that is there any minimum standard regarding the size, revenue and/or profit that the company must satisfy in order to sponsor the IANG visa.
In other words is there any minimum standard for the financial standing of the company for it to be eligible to sponsor the IANG Visa?
ANSWER
Essentially what the Immigration Department is looking for from a proposed sponsor of an employment visa granted under the Immigration Arrangements for Non-Local Graduates (IANG) is that the sponsoring entity indeed be a suitable and credible sponsor. Now whilst your question drives to the heart of profitability, in fact the Immigration Department are not so much looking for profitability, although that clearly helps if the business is profitable, but they’re wanting to make sure that it’s a sizable and well established employer, and to that extent what I’ve done is I’ve included in this post a cut and paste of a standard list that the Immigration Department send out in pursuit of every application under the Immigration Arrangements for Non-Local Graduates, so you can get uh an insight into what it is the Immigration Department is really looking for from a proposed sponsor so that it can qualify as a suitable & credible sponsor.
If you can address each of these items in the list to the satisfaction of the Immigration Department then suitability for sponsorship purposes will be established; and note that there is a requirement there in relation to the business plan for the business in the event that the sponsoring entity or the proposed sponsoring entity is less than twelve months old.
This really drives to the heart of the Immigration Department wanting to be sure that friends of IANG applicants are not just cobbling together a quick story for the purposes of contriving a job offer under IANG so that new graduates will be able to carry on their lives in Hong Kong in the wake of having had a twelve-month grace period to get themselves established in the workforce with well established organisations.
So I think the list actually speaks volumes as to what the Immigration Department are looking for. Don’t worry about profitability as such. Just make sure that as you’ve stated the compensation that’s being paid to you is broadly commensurate with market rates locally, and if your employer is able to suitably address the list that’s detailed in the post, the bona fide of being a suitable and credible sponsor will have been established and you can expect that your extension will get approved without too many problems.
I hope you found that useful.
Copy Standard List Requirements Referenced in the PodCast Answer
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Successfully Apply For An Entrepreneur Visa In Hong Kong
A comprehensive guide to successfully apply for an Entrepreneur Visa in Hong Kong, covering all aspects from business plan to financial projections.
Ownership Structure
The ownership structure of your business plays a crucial role in your visa application. The Hong Kong Immigration Department generally expects applicants to own more than 50% of the business. This ownership percentage may lead to a more rigorous approvability test for your Entrepreneur Visa.
Business Plan
A well-crafted business plan is a cornerstone of your visa application. It should include a two-year forecast of the profit-and-loss account statement, cash flow statement, and balance sheet. This detailed financial projection demonstrates your business’s potential for generating substantial revenue or other economic benefits for Hong Kong.
Contribution to Hong Kong’s Economy
Your business should aim to make a significant contribution to the Hong Kong economy. This could be through job creation, innovation, or enhancing the local market’s competitiveness. Be prepared to provide concrete examples and evidence of how your business will achieve this.
Business Premises
Having suitable business premises is another critical factor. Running the business from a home setting may not be acceptable. Therefore, ensure you have a professional workspace that aligns with your business’s nature and scale.
Capital and Other Resources
Proof of capital and other resources suitable for your business context is required. The capital should have been beneficially owned by you for at least 2 years immediately prior to funding the business.
Administration Arrangements
Adequate administration arrangements are essential. One-man businesses typically fail to pass the ‘substantiality’ test. Therefore, ensure you have a robust administrative structure in place.
Local Jobs
Your business plan should include the creation of local jobs. This not only contributes to the economy but also demonstrates your commitment to the local community.
Experience
Relevant investment, entrepreneurial or working experience in the business concerned is another key factor. This showcases your skills, experience, and qualifications that are relevant to your proposed business in Hong Kong.
Government-Backed Programme
If your startup is supported by a government-backed programmewith a rigorous vetting and selection process, it can significantly enhance your visa application’s credibility.
Potential Red Flags
Be aware of any potential red flags that could hinder your visa application. For example, trying to mask the shareholding in an effort to get around the general rule of thumb regarding ownership structure could be detrimental.
Professional Assistance
Seeking professional assistance for the visa application process can be beneficial. This could include help with preparing a strong business plan and compiling the necessary documentation to support your application.
Sponsor
Having a sponsor who is a bonafide Hong Kong resident, preferably a permanent Hong Kong identity card holder, can strengthen your application.
Business Structure
Setting up a limited liability company serves to help demonstrate your commitment to the business and increase your chances of a successful visa application.
Sufficient Funding
Evidence of sufficient funding to support your business and yourself during the initial stages of operation is crucial. This shows your financial stability and readiness to embark on your entrepreneurial journey in Hong Kong.
Start-up Visa
Being supported by a recognized Hong Kong government-backed program, such as the Cyberport Incubation Programme, Design Incubation Programme, Hong Kong Science and Technology Parks Corporation’s Incu-App, Incu-Bio, and Incu-Tech programs, Small Entrepreneur Research Assistance Programme (SERAP) by the Innovation and Technology Commission, or Film Production Grant Scheme by Create Hong Kong can significantly boost your application.
Required Documents
Ensure you have all the required documentsready for submission. These include application forms ID999A and ID999B, a recent photograph, a copy of your passport’s details page and your current visa if you are in Hong Kong, birth and marriage certificate, an up-to-date CV, photocopies of graduation certificates and proof of academic qualifications, copies of prior employment references and testimonials, a letter of engagement or employment contract with your own business entity, a copy of your Business Registration Certificate, copies of the latest audited financial report and/or management accounts (if available), the latest profits tax return, and the most recent Annual Return filed with the Registrar of Companies (FORM NAR1).
Dependent’s Application
If you have dependents, you need to provide proof of a genuine relationship, no detrimental records, and the ability to provide financial support and suitable accommodation.
Lastly, be prepared for the lengthy and challenging process of the entrepreneur visa application, which takes four to six months to finalize. Patience and persistence are key to navigating this journey successfully.
I Have Sworn A Declaration That I Am Leaving Hong Kong To Receive An MPF Refund …
Am I Now Precluded From Making an Application for the Right of Abode Here?
QUESTION
I have been resident in Hong Kong for 5 and a half years on a working visa.
I lost my job over 6 months ago and thought that I had no option but to leave.
I obtained the MPF refund in May and signed a statutory declaration indicating that I would leave in early June.
I then realised that I had been too hasty and that I could still have applied for the right of abode at the end of the seven year residency period.
I now want to do this and either study or work if i can get a job until such time as I can apply.
Is it too late now that i have signed the statutory declaration and received the repayment?
Is there anything I can do to remedy the position?
Thank you in anticipation of your reply.
PODCAST SUMMARY
Understanding MPF Refund and Its Implications
In this Post I will unravel the complexities surrounding MPF (Mandatory Provident Fund) refund and its potential impact on your eligibility for the right of abode in Hong Kong. I’ll explore the steps you can take to address this situation and ensure a smooth path towards permanent residency.
MPF Refund: Exploring the Process
To begin, let’s delve into the process of obtaining an MPF refund. While I may not be an expert in the intricacies of MPF policies, it’s crucial to understand that making a statutory declaration for an MPF refund involves a commitment to leave Hong Kong. If you’ve received the refund but have had a change of circumstances, such as deciding to stay in Hong Kong, it’s advisable to contact the MPF authorities promptly.
Reversing Your MPF Declaration
Reversing the MPF declaration may not be a straightforward process, but it’s essential to reach out to the MPF authorities and explain your new situation. They are likely to have protocols in place for handling such scenarios. While the exact details may vary, addressing the issue with the MPF officials is a crucial step in ensuring that your financial matters align with your revised plans in Hong Kong.
The Path to the Right of Abode
Now, let’s focus on your eligibility for the right of abode in Hong Kong. If you’ve been residing in the city for five and a half years and can maintain a residence visa throughout the full seven years, you have a chance to apply for the right of abode. The key criterion is demonstrating that you are settled in Hong Kong.
The Challenge of the MPF Declaration
Here’s where the challenge arises. Your prior MPF declaration indicated that you intended to leave Hong Kong, which could be seen as conflicting with the notion of being settled in the city. To address this, you’ll need to take steps to undo the prior declaration.
Demonstrating Settlement in Hong Kong
To successfully secure the right of abode, it’s crucial to prove to the Immigration Department that you have become settled in Hong Kong by the time you reach the seven-year mark. This includes maintaining your residence visa permissions, potentially through studying or changing your employment sponsorship, and establishing a life that reflects your settled status.
Last Words …
While the MPF scenario in your situation may present challenges, it’s not necessarily fatal to your ability to obtain the right of abode in Hong Kong. Addressing the MPF declaration and demonstrating your settled status in the city over the next one and a half years can pave the way for a successful application. Remember to reach out to the MPF authorities promptly and take the necessary steps to align your financial commitments with your intentions in Hong Kong. With careful planning and action, you can work towards securing your right of abode.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Employment law and immigration law are often overlapping but must be dealt with separately…this post talks about what can be done if someone’s employment contract ends on the same day as their Hong Kong work visa, but they need to stay in Hong Kong for a while longer to sort out their affairs.
What can I do If my employment contract ends on the same day as my Hong Kong work visa and I need to stay here a while longer to sort out my affairs?
QUESTION
I am in a fix with a difficult-to-deal-with local company.
My 2 year contract with them expires this October 20. My work visa expires on the same day.
Is my employer legally required to serve a one month notice?
If the HR Department mention nothing to me, is my last day at work October 20, and am I required to leave the country? I am Canadian.
Is my employer required to contact the Immigration Department and notify them of my employment ending? At what date?
If I leave Hong Kong on the 20th of October to Macau for the night and return on the 21st, can I come in on a 3 month visitor visa so I can pack up the house?
Or is it better to go to the Immigration Department on the 18th/19th and apply for an extension to pack up my things and leave Hong Kong?
ANSWER
Whilst I’m not an employment lawyer, I’m not really qualified to discuss matters of employment law, it does seem to me that if you have a fixed term employment contract which is going to expire in your case as of October the 20th, then you need to look to your contract to see if there is any arrangement that speaks to an extension of that employment contract and if there is a specific notice period that the employer will need to give you in order to advise you of the termination of your employment as at the date of your contract termination too.
So look to the contract to see what that’s all about. But, in any event, all of that notwithstanding the question of your ongoing employment visa is tied directly to your ongoing employment. Therefore, if your employer has not yet indicated the possibility of an extension to your employment contract it will be the case that come October 20, when your current employment visa expires, effectively you will no longer be lawfully employable in Hong Kong.
I understand your challenge insomuch as well if you’re no longer going to be working in Hong Kong after October the 20th, you can’t just, in a sense, stop working and then mystically, magically wonderfully, before midnight that day head off back to Canada.
You’re going to need to have some time in order to manage your affairs here in the wake of your intending departure. So there are two things that you can do. One which is recommended, one which I would suggest you avoid.
The first thing that you can do is to go down to the immigration department on the 21st and explain effectively what your situation is and ask them to give you an extension.
You may find that they will give you a temporary extension for perhaps a week, maybe two at the most in your circumstances. And that is barely recommended because of the way that the immigration officers in immigration tower usually consider these applications.
The second option that you have, which is the one that I recommend, is that on the 20 October, you take the 11:00 p.m. ferry to Macau, and then after you’ve arrived in Macau, immediately jump back on the 01:00 a.m. ferry on the 21 October back to Hong Kong, and then the immigration officer upon arrival will admit you as a Canadian national for 90 days as a visitor, and that three months will then give you all the time that you need to finalise your affairs and make your exit from Hong Kong to return home. So, that’s what I would suggest you do.
I hope you find this useful.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
