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?

Posted by The Visa Geeza / in Employment Visas, Your Question Answered / No responses

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.

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Will A Criminal Record Impact On Your Application For A Hong Kong Residence Visa?

Posted by The Visa Geeza / in Employment Visas, Family Visas, Hadley Says…, Investment Visas, Long Stay & PR, Refusals & Appeals, Special Programmes, Visitor Visas / 144 responses

This article tries to clarify the impact of a criminal record on your application for a Hong Kong residence visa

Used to be no – but now the game has completely changed.

Criminal records now must be disclosed across all visa types.

Every now and again the question of criminal convictions and the impact they have on the Hong Kong visa process raises its head. Hadley here waxes lyrical on this subject and surprisingly, has quite a lot to say!

Criminal Record Impact On Your Application For A Hong Kong Residence Visa – Is Your Conviction Already Spent?

Of course, the million dollar question right now is will the existence of a prior criminal conviction automatically disqualify an applicant? If not, what is the threshold? Will ‘spent’ convictions need to be disclosed?

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If I Have A Hong Kong Dependant Visa Can I Work Here For A Foreign Company Even Though They Have Not Registered As A Business In Hong Kong?

Posted by The Visa Geeza / in Family Visas, Your Question Answered / No responses

This question mainly relates to business rather than immigration law but is still an important question nonetheless…

QUESTION

Hello

I have a Hong Kong  dependant visa that gives me the right to work in Hong Kong. I have been offered a Regional Asia role based out of Hong Kong by a Canadian company.

This company is not registered in Hong Kong.

Can I work for them as sole proprietor under my Hong Kong dependant visa ? Or do they need to register as a limited company?

If they register here can I work for them on my Hong Kong dependant visa?

Appreciate your help.

ANSWER

Strictly speaking, from an immigration perspective, there is no preclusion to you taking up employment with any party in Hong Kong, because the legal dependent visa effectively gives you carte blanche approval to engage in any kind of activity in Hong Kong so long as it’s lawful and as long as you continue to remain under the sponsorship of your spouse – the principal employment visa holder.

The issue really here is the question of how you go about ensuring that you personally and the activity that you engage in is lawful from the perspective of your income, because you do need to be reporting the results of your work activity to the Inland Revenue Department.

And normally, if you’re an out and out employee, your employer is registered as a business here, and the act of registering as a business allows the Inland Revenue Department to be put on notice that you should be sent a tax assessment for the work that you do working for that registered business in Hong Kong, and given that your proposed employer doesn’t have a registered business in Hong Kong, the question is begged as to how you will be able to ensure that your income is reported to the Inland Revenue Department so that you are compliant with revenue law. And as you’ve alluded to in your question, registering as a sole proprietorship is the way forward, simply because there is no other way for the Inland Revenue department to understand, essentially how you’ve been earning your living, and by registering as a sole proprietor, getting a business registration certificate, the money that you receive from that overseas entity will be recorded in your hands as income, and after due allowances have been made for expenses as a registered sole proprietor, then you’ll have at the end of the exercise an accessible income to tax and you’ll pay a tax on that.

But insofar as the registration requirements of the proposed employer in this regard, as long as they are not going to be carrying on a business here and the work that you do will be as an independent contractor representing the interests of that foreign business, then there is no preclusion or issue at all in terms of how you will be working for them so long as you yourself is registered as a sole proprietor, and you report your income to the Inland Revenue Department in that fashion. I hope you found that useful.

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Can You Remain In Hong Kong Under An Employment Visa Sponsored By An Ex-Employer & Run A Hong Kong Sole Proprietorship Providing Services Outside Of Hong Kong (Mostly)?

Posted by The Visa Geeza / in Employment Visas, Investment Visas, Your Question Answered / No responses

Remain in Hong Kong under an Employment Visa sponsored by an ex-Employer? Unusual set of facts in this case and a question never posed to me in this fashion previously…

QUESTION

I have been in Hong Kong since 2011 under an employment visa but have recently quit my job.

The last time my visa was renewed it was extended until November 2018 and I understand I still have the privilege to reside in Hong Kong until then even if my employment has ended.

I now have a consultancy agreement with a firm based in Singapore for which I provide services independently.

The fieldwork (which represents 80% of the work) takes place outside of Hong Kong, I only write up my reports from home in Hong Kong.

I have registered a sole proprietorship business to report the consultancy income for tax purposes.

However, I guess I am not supposed to work under the current conditions of my stay.

My questions are:

(1) Could the fact of reporting that income to the tax authorities actually trigger some issues on the immigration side?

(2) If I was to apply for a business investment visa as an entrepreneur and it was rejected, could that trigger the Immigration Department to cancel my current permission of stay until November 2018?

What is in your opinion the best thing to do?

ANSWER

The employment visa that you have presently has been granted to you on the strength that you are permitted to work in Hong Kong for your nominated employer and your nominated employer alone. As you’ve correctly understood, even though you have a valid limit of stay that stretches all the way through to 2018, you’re privileged to work for anybody in Hong Kong other than yourself.

Given that you have established a business – which you’ve done through the establishment of your sole proprietorship, essentially you’ve breached your conditions of stay at that point, and given that you’re spending 80% of your time on field work outside of Hong Kong, engaging in employment activities outside of Hong Kong doesn’t mitigate the fact that you will spend the 20% of the remainder of your time in Hong Kong actually undertaking employment activities for your own sole proprietorship business.

So, clearly, in the circumstances that you find yourself right now, you are breaching your conditions of stay as a result of you not merely residing in Hong Kong but having established a business here. So, clearly you’ve got to think about bringing your circumstances into compliance as soon as you possibly can.

Additionally, the fact that you have established a sole proprietorship certainly could alert the Immigration Department to the fact of you having established that business, as the Immigration Department and Inland Revenue Department are able to exchange information if they so wish;  whether that’s an automatic exchange of information or whether it’s done on specific query or not is question that remains open being part of the Security Bureau; clearly I don’t have privileged access to how those government departments work but, nevertheless, my best advice to you is to make an application to adjust your status from sponsored employment through to business investment in your own right. I won’t go into the details of how you go about satisfying the approvability test for that business investment visa, because I’ve dealt with that quite extensively elsewhere on the site.

In terms of the Immigration Department potentially refusing any such business investment visa application as an entrepreneur and then yanking, as it were, the rug from under your feet and then giving you a shorter limit of stay, I suspect that that’s probably not going to happen to you; it doesn’t appear to be the Immigration Department standard practice in those circumstances. If they say no to business investment, it means that they are not satisfied that you can make a substantial contribution to the economy of Hong Kong on the basis of your business plan and the other information that you have put forward. So, if you do get denied, you do have an opportunity to have another go at it on the basis of a reconsideration, and if you get it right the second time, then you are on your way.

So, just to wrap it all up – yes, you are not permitted to actually engage in the activities that you’ve presently configured yourself for, given that you’ve left your employment of your previous sponsor.

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Must The Employing Company Sponsor Of My Hong Kong Work Visa Application Be Profitable?

Posted by The Visa Geeza / in Employment Visas, Your Question Answered / No responses

How important is sponsor-profitability, especially for start up businesses less than 12 months old?

QUESTION

I have been recruited by a newly established company (12 months old as of this week).

They have never hired a foreigner and have tasked me with completing the visa forms, both employee and employer versions.

The Employer-side application requires “proof of financial standing.”

Although registered one year ago, the company has only recently begun making sales, which do not amount to much.

Will the companies lack of profit negatively affect my chances at being approved under this Hong Kong work visa application?

If so, is there anything that can be done to mitigate this?

Thank you in advance for your reply.

ANSWER

Whenever the Immigration Department are asked to ascribe a suitable and credible sponsorship status to a newly established enterprise, the Immigration Department will look at a number of different factors when taking into account a good financial standing of the business. As a newly established company with no history of trading, that will not come as a surprise to the Immigration Department if only just turning revenue now, that’s okay.

They’ll look to see for a set of management accounts – I appreciate you won’t have an audited management account at this point, but certainly up-to-date management accounts that shows the balance sheet and the profit and loss so that the Immigration Department can see what’s going on now, that will be beneficial to the application.

The fact that there are no revenues, as you say, then what does the bank balance look like, and what the extent of the funding available to be used for the business. As long as all of that stacks up, it will not stand in the way of you getting your approval because you’ll satisfy the financial bona fides accordingly.

I hope you found that useful.

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How Does Pre-Existing Business Ownership Impact On A Hong Kong Prolonged Visitor Visa Application?

Posted by The Visa Geeza / in Family Visas, Visitor Visas, Your Question Answered / 4 responses

Will what has been done before impact on a Hong Kong Prolonged Visitor Visa out of policy application now?

QUESTION

I have a general question regarding conditions of stay for a Hong Kong prolonged visitor visa.

On the Hong Kong Immigration website it says:

“Subject to the following conditions of stay:

(a) he shall not take any employment, whether paid or unpaid:

(b) he shall not establish or join in any business; and

(c) he shall not become a student at a school, university or other education institution. “

Does being owner of a business fall into one of these categories ? 

Considering that  the company was incorporated in Hong Kong by other persons a few years ago, and bought before applying for such visa ?

ANSWER

Really good question, and I’m grateful for you having raised it in the way that you have.

Given that your acquisition of this business interest occurred at a time when you were not in breach of your conditions of stay, assuming that, at all times, this business was acquired when you were not in Hong Kong, and therefore the issue of your immigration status at the time that you acquired the business doesn’t come into play.

The principal issue at play in this regard, then, is what will the Immigration Department make of the fact that you have an interest in the business at the point of you being granted a prolonged visitor visa? Because if you’re involved in the business operationally and intend to be involved in the business operationally while you’re in possession of a prolonged visitor visa, that will certainly be a breach of your conditions of stay upon the grant of a prolonged visitor visa, assuming, of course, that the Immigration Department give you one because it is an out of policy act of discretion to grant such a visa in the first place.

So, effectively, assuming that you’re going to disclose what your interests are, what your financial circumstances are as part of your prolonged visa application, then your interest in this business in Hong Kong will be disclosed to the Immigration Department and you’ll have to make certain representations in relation to it.

The Immigration Department will be concerned that if you’re going to play an operational role in the business, as I say, as a prolonged visitor, you’ll be breaching your conditions of stay. So you’ll need to tread very carefully in how you articulate your argument to the Immigration Department, so that they can be satisfied that if they do effect a positive act of discretion in your favour and they do grant you a prolonged visitor visa, they have no concerns about you breaching those conditions by then, immediately, in a sense, walking across town and then taking care of the business, as it were, a business, in this instance, that you acquired before your question of immigration status ever came into play.

So I don’t think you’ve got any issues at all to be concerned about in respect to how you acquired your business interest, prior to making this application for a prolonged visa visa. But it’s certainly in your best interest to disclose the fact of your interest in that business to the Immigration Department so that they can then take it into consideration when determining if they should make that out of policy determination to grant you the prolonged visitor visa that you’re looking for.

Okay. I hope you found this useful.

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Hong Kong Unconditional Stay – A Practical Guide (Business Immigration To Hong Kong)

Posted by The Visa Geeza / in Long Stay & PR, Musing, Resource / No responses

In this post, I talk about  the Hong Kong unconditional stay and when it might be useful to you.

Hong Kong unconditional stay plays a lesser yet still important role in immigration status to acquire in the HKSAR today…

On March 21, 2014 I gave a presentation at the Chinese Club entitled Business Immigration to Hong Kong – A Practical Guide. The information stays relevant today.

The unconditional stay covers the instances where a long-stay foreign national resident is in a position to make an application for the Right of Abode but they genuinely cannot put their hand on their heart and say that they’ve taken Hong Kong as their only place of Permanent Residence and, in that instance, because of the fact that one of the application forms the ROP146 calls for that declaration, if you can’t make that declaration you can’t get the Right of Abode; however, what you can do instead of getting the Right of Abode is making an application for unconditional stay and essentially it’s the same test for approval – seven years continuous ordinary residence in Hong Kong, and if you can satisfy that test but you can’t make the Declaration then you can have your stays adjusted to unconditional stay.

The unconditional stay relieves you of all the limits to your existing residence in Hong Kong so there’s no imposition on the limit of stay and what you can do whilst you hold unconditional stay, so this is a really useful immigration status.

Before a case that was settled at the end of the 90s, the unconditional stay application was a pre-requisite for obtaining the Right of Abode, but the Supreme Court said this is not constitutional because you’re allowing the director of immigration the ability to roadblock somebody’s potential to want to get the Right of Abode; so now there’s no requirement to get unconditional stay first, you can go directly to the Right of Abode the test for approval is exactly the same as for the unconditional stay.

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