What’s the differentiating line between a Hong Kong investment visa and an employment visa when investing in the company that is seeking to sponsor-employ you?
QUESTION
I’m from Australia and have been living and working, as a language teacher, in Hong Kong since December 2014.
I am currently starting up a business with a partner.
I have an employment visa and my business partner has no visa challenge associated with this project – he is married to a local woman.
We are setting up an insurance brokerage based online. We have a business plan and also plan to employ at least 3 members of staff within the next twelve months.
We have a 90% completed website (by developers based in Hong Kong). We are also incorporated in Hong Kong too.
My partner has paid for his 51% equity with a permanent, 5 desk office in Wanchai and HKD500,000 in cash.
I am ready to invest HKD500,000 in capital in exchange for my 49% along with my domain expertise and experience.
I am a qualified insurance professional in Australia and have sat for and passed the relevant exams in Hong Kong, but only really have experience here as a language teacher, so feel that an employment visa would be tough to get from Immigration.
How likely is it that I will be accepted for such a Hong Kong investment visa?
ANSWER
This is a great question, and I really appreciate you bringing it up. It goes to the core of three key points: your transition to a new business situation, moving from one profession to another for visa purposes, and the investment necessary to convince the immigration department of your eligibility. First, regarding your new business serving as a sponsor, you’ll need suitable business premises, which you seem to have, and a clear pathway to creating local jobs. Additionally, having adequate funding and resources is essential. Given that your website is nearly complete and you have a professional background, it’s likely that your new entity will meet the immigration department’s criteria for sponsorship. Next, let’s address the change of employment category. You’re currently on an employment visa that requires proof of special skills, knowledge, and experience not readily available in Hong Kong. While being an English language instructor can restrict your classification, if you’re qualified in another profession and intend to invest in a business, the immigration department will recognize your capacity to contribute to that investment as valuable. I advise you to invest the approximately half a million dollars you mentioned into the business. This can be through direct capital or loan capital. It’s crucial to demonstrate this investment as part of your commitment to participating in the company’s activities, as it can positively influence the immigration department’s evaluation. Now, regarding your immigration status, it seems you’ve ruled out applying for an employment visa due to the change in work focus. However, since you’re qualified for the work tied to your investment, you’re in a strong position to apply for a change of category from a sponsored employment visa to a business investment visa. Since you own less than 50% of the company, I recommend seeking your company to sponsor you. Although there are no strict rules, the immigration department will evaluate your application through both the employment visa and business investment visa criteria. Given that you’re an existing resident, processing for these applications typically takes four to six weeks, allowing you the flexibility to choose the best route. I would suggest pursuing the employment visa with specific considerations for your status as a shareholder, as this could enhance your chances of success. Overall, your qualifications, investment, and residency status position you well for a successful application. I wish you all the best as you move forward!
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
What will the Hong Kong Immigration Department make of an application for a second partner to join in an existing business and secure a business investment visa (or) Hong Kong investment visa for an unprofitable company – easy or hard?
QUESTION
My business partner is moving to Hong Kong soon.
Until this point, we had no need for him to be resident in Hong Kong but soon he will play an active role in developing the European part of our business.
Our company has not yet turned a profit so I am wondering if it would be a problem when I make him a contract and apply for his working visa as the other shareholder and director of the company?
What can you suggest?
ANSWER
For foreign nationals looking to establish a new business or join an existing one in Hong Kong, obtaining a residency visa is crucial. To engage in business affairs, applicants must pass the investment visa approvability test, demonstrating that they can make a substantial contribution to Hong Kong’s economy. While the specific requirements for the investment visa can be found in detail on our site, it’s important to note that if a foreign national is sponsored by a Hong Kong company, their incoming partners must also show their potential contributions. This can be through their skills, resources, or finances, indicating their ability to positively impact the local economy. If you’re considering bringing a partner to Hong Kong to assist in business operations, here’s what to keep in mind:
– You should have a well-defined business plan and operational premises.
– Evidence of local employment and business turnover is essential, even if you are not yet profit-making.
– Your updated business plan should outline how your partner’s involvement will lead to business growth, job creation, and ultimately profitability.
However, if your business is struggling or not meeting its potential, it may be challenging to gain approval for an investment visa. Understanding the parameters of the investment visa approval test will provide clarity on the challenges ahead. This process requires careful consideration, but with the right preparation, you may secure residency for your partner and strengthen your business in Hong Kong.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
In actual fact, your employment visapermissions belong to you, not your employer as they are just the sponsor of your immigration status, not the final arbiter of whether you can remain in Hong Kong or not.
Only the Hong Kong Immigration Department hold this power.
If you find your position with your employer untenable and determine to leave your job, effectively, your permission to work ceases at the point of you terminating your employment, but your consents to reside in Hong Kong continue until the Immigration Department tell you otherwise OR your current limit of stay expires.
Consequently, you should write to the HKID and advise them of the change in your circumstances and at the same time let them know about your new intentions in the wake of leaving your job.
It is lawful activity to look for an alternate employer under this scenario, as is interviewing and accepting an offer of employment. But it is NOT lawful to start working for a new employer until you have secured the permission of the HKID to take up that new employment.
To go on to get these permissions, you to make an application to change your employment visa sponsor, which should 4 – 6 weeks to complete after you have submitted your application in light of your new offer of employment.
However, it is important not to assume that your application will automatically be approved as you still need to pass the employment visa approvability test in respect of that alternate employment and for all practical purposes the Immigration Department will treat such an application as an entirely new one.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
This is an important question on the business investment visa for Hong Kong….
Experience suggests that the Hong Kong Immigration Department do tend to look favourably upon such business plans, but the applicant absolutely does not have it all his or her own way, as you will learn in my PodCast answer. (Please note the subject matter of the business in this question is just an ersatz surrogate. I have changed it to ‘fear of flying’ to protect the identity of the service nature and maintain the confidences of the person planning to establish this very unique enterprise.)
QUESTION
“I, an American citizen, have been planning on beginning a stress-management therapy business in Hong Kong for adults who suffer from a fear of flying.
The market is a whole lot bigger than you might imagine given that intrinsically Hong Kong is a small, far flung place that is typically accessed by commercial flights.
Consequently there is hardly anything in Hong Kong and the rest of Asia generally which offers this type of private therapy course, plus post-therapy support, for adults who simply can’t summon up the courage to get into an airplane.
Each intensive therapy course will run over a 3 day period, 12 hours per day. The objectives of the therapy are not just to allow participants to control and overcome their fears, but become incredibly self-confident in the process.
I personally have 8 years of first-hand experience in this very successful therapy. I have been through the same programme as a student, now a graduate, coach and course instructor.
I don’t hold any tertiary qualifications except for a Diploma at college.
My girlfriend, who is also a coach and course instructor on the programme, holds a bachelors degree.
The start-up costs are very low. I envision I can start employing 1 person full-time after 7 months and 2 people in part-time employment after 10 months.
The business is basically a franchise in many respects. The programme is already a worldwide business (the America’s, UK, Australia, South Africa, Europe, NZ, etc) so this will be the Asian branch.
In that case, is there a possibility the owner/inventor of the programme could help fund the start-up in HK or would that relegate myself to an ’employee’ status in the eyes of the HK officials rather than a ‘Business Owner’?
With only US$6,000 in capital available to me at the moment, I believe my best route is to try to register the business over in mainland China first.
I have not looked into the hurdles one must pass to start a business over here (I’m in Guangzhou) but it may be easier than HK.
If I can do it, I have the prospect of having around US$25,000-US$40,000 come April-June next year.
With that money available, and the proof of income making already from the business in mainland China, that may be a better time to apply for the Investment Visa in HK?
I expect business to be operating full throttle after 14-18 months from start up in Hong Kong bringing in around US$40,000 a month from then on.
I also plan to keep studying Mandarin and Cantonese language classes so I can eventually teach the courses in native Chinese language which will increase my market.
Do I have a good chance of obtaining an Investment Visa?”
ANSWER
The fact of the matter is that the Immigration Department do place significance on the nature of an enterprise that’s going to be supporting an application for an investment visa by a foreign national, and if the space that the foreign national is going to be establishing a business in can be said to be advantageous to society more generally than just the contribution that it makes to the economy of Hong Kong, experience tells me that the Immigration Department do factor that in quite heavily.
That having been said, there is still a requirement for the enterprise itself to be credible on every front. So sort of dealing with the general themes that you raise in your question in no particular order, but will all tie properly together at the end.
I believe I’ll start off by saying that the USD6,000 that you’ve got to invest in the business will not work for the Immigration Department. I mean, quite apart from the fact that the visa calls for an active investment, USD6,000 really isn’t sufficient capital to actually get the business off the ground, and the Immigration Department do know that typically any business that is going to be relying upon revenues to be earned to finance itself tend to be a stew by the department.
So you’re going to have to have a decent wedge of capital under your belt to persuade the department that you’ve got the necessary resources to give effect to your plan because, as we know, just because you’ve got a really good business idea doesn’t mean that it’s going to be successful by mere fact that it is an idea and it’s a good idea, you’re going to have to invest money into taking it to market and bringing it to the attention of people who are going to be providing you with the revenues to ensure that it’s successful. So USD6,000 isn’t going to cut the mustard, I’m afraid. On the other hand, if the franchisor took an equity stake and provided a bulk of the capital, that would significantly improve your chances of success. But as a business with you owning a piece of the action, the Immigration Department would apply the investment visa aprovability test to your application, rather than the employment visa provability test, and they are two different animals: one focuses on the individual skills of the applicant – that’s the employment visa probability test, whereas the investment visa aprovability test focuses squarely on what the business is all about and how it can make a substantial contribution to the economy of Hong Kong. But in a strange way, if your franchisor came in and effectively took the bulk of the equity this could be advantageous, because unless you’ve got specific qualifications in the fear of flying space, as it were, I suspect the Immigration Department would conclude that you’re not actually qualified to undertake this work as an employee. Therefore, by going down the investment visa route, it puts the focus on the chances of success as a business, not how qualified you are as an employee; and once you get to a point where you’re really sort of ten to 15% shareholder in a company, the Immigration Department, they’re going to be applying investment visa approvability test here in any event. So that definitely could be a way for you to fast track your plans to come into Hong Kong if you’re prepared to go into business with these people.
In terms of the turnover at USD40,000 a month, I mean, this is a half a million dollars a year and that will definitely pass muster with the Immigration Department. So your revenue numbers are absolutely on the money for an approval in terms of you potentially being able to take your limited capital pool to China first and starting your business there before you bring it to Hong Kong.
Like you, I’m not really in a position to understand what will pass muster in China, whether or not you can get immigration status in the way that you envisage. But I can tell you that if you use China as a proving ground and establish this practise there first, it will definitely be a good idea, because what that will mean is the Immigration Department will be able to access the documentation that shows that it has worked.
In fact, it is working under your stewardship in China and it becomes de risked from the Immigration Department’s perspective, particularly if you’re going to wait until another eight or nine months down the road when you do anticipate that you’re going to come into funds of up to say, USD40,000. That level of financing together with a track record in China, together with your experience in this space, together with the creation of local jobs in the first twelve months, together with a projected half a million USD in revenues turnover in the first twelve months, I believe the Immigration Department would give you an investment visa on that kind of story with those kind of resources in place. So, from that perspective, I think, you’re onto a pretty good opportunity if it all falls into play in the way that you’re hoping it to.
Now, the only other question that you’ve raised that I need to address relates to this question of your girlfriend and who is ostensibly qualified to perform this work.
I think implied in that inclusion in the question is the idea that you’re going to have your girlfriend come and work in the business for you, which, on the basis that she doesn’t have immigration status for Hong Kong, will mean that this business is going to have to serve as an employment visa sponsor for her, which, as a new business, is going to raise a lot of questions with the department having said that if you can fold her into the story in such a way to suggest that the business is going to grow with her contribution, together with your contribution, to the extent that the two of you on the books, as it were, your ability to sell more is going to be increased, and that will then, by extension, allow you to create a bigger business, and the creation of local employment opportunities is going to be improved over and above the numbers that you’ve mentioned in your question. So don’t take it for granted that just because the Immigration Department partner buying into the idea that you will get an investment visa, but it’s assuming that your girlfriend, under the sponsorship of this new vehicle, will be able to get approved accordingly. That’s a separate challenge that will need to be examined in light of where you are in your business at the time that you make your application. It is not impossible, but you certainly need to think about that as a separate application exercise; don’t factor it into your own application mix, as it were.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Whilst the implementation of Hong Kong immigration policy is essentially very flexible, as anemployment visa holder, until you have gone on to receive the right of abode(RoA) or unconditional stayafter seven years continuous ordinary residence, your permissions to remain in Hong Kong are governed very tightly. I am grateful to this questioner for providing an opportunity to have a discussion about ‘strategic immigration status management’ through to the point where it is possible to make an application for permanent residency in the HKSAR.
QUESTION
“Thanks for being so helpful, your posts are very useful. I have 2 questions:
1) If my visa is expiring in 31 April 2013 and the company extends it 15 March 2013 which gets approved (before the original visas expiry date, i.e. approval on 30 March 2013) to extend until April 2015 – what happens if I quit before the original visa’s expiry date (but my extension has already been approved)? Am I allowed to stay in HK until 2015?
2) If my visa is expiring 31 April 2015, and I decide to quit, can I apply for university courses or a degree course on the employment visa that I am on or do I need to re-apply for a student visa (end date of the course does not surpass the visa expiration date)?
Does this educational period count towards Right of Abode?”
ANSWER
In this question, we’re being asked whether it’s possible to extend your current employment visa, quit your job, then go on to take up studies full time without actually dealing with the question of immigration status. In wake of the change in the rationale for Hong Kong, it’s not commonly appreciated that when you get an employment visa, you get two privileges: you get the privilege to do the particular job that’s underpinning your employment visa in the first place, and you also get the privilege to reside when you stop working for that particular employer that is the party that’s sponsoring your employment visa. Effectively, your privileges to work cease at that point in time, but your privilege to reside continues until your current limit of stay expires or unless the Immigration Department expressly revoke your existing limit of stay and give you a shorter limit of stay, whereupon you’re expected to leave.
Thus, if you have had your privileges to work terminated as a result of leaving your employment, then effectively the question is what is permitted activity other than residing in Hong Kong whilst you’re in possession of that employment visa? Well, it’s not permitted activity to take up any employment and it’s not permitted activity for you joining a business first without getting the consent of the Immigration Department.
When you possess an employment visa, it is permitted activity joining a part time course of study? It’s not permitted activity whilst you’re in possession of an employment visa to take up a full time course of study. So if your rationale for remaining in Hong Kong in the wake of leaving your job is to take up a full time course of study, you’re going to have to adjust your immigration status from employment through to student, and the limited stay that you’ll get on each occasion will be directly related to your continuing enrolment and your continuing participation in your course of studies. So then, moving on to the second part of the question, effectively, any time that you spend in Hong Kong as a resident will count towards your continuous ordinary residence for the purposes of an eventual Right of Abode approval.
So the test is continuous ordinary residence showing that you have become settled in Hong Kong throughout this time and at the point of making your application, you’ve taken concrete steps to having taken Hong Kong as your only place of permanent residence. Therefore, any time that you spend as a student in Hong Kong, as long as it’s part of a continuous period of ordinary residence that amounts to no less than seven years. Having become settled and taken Hong Kong as your only place of permanent residence, then that time spent as a student will definitely count towards the seven years for the purposes of a permanent residency approval.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
I need to know as I have one page left in my passport.
And will immigration take my passport away to facilitate me getting permanent residency?
ANSWER
If you’ve lived in Hong Kong continuously for a period of not less than seven years, you can make the application to convert your status from temporary resident to permanent resident. During the currency of your application for permanent residency, the Immigration Department will call to inspect your original passport at the point of them verifying your eligibility that you are in fact a permanent resident. And that’s the only use of the passport that the Immigration Department take whilst your application for permanent residency is ongoing, so they don’t hold it at all; you are in fact able to travel freely or otherwise with your passport whilst the application for PR has been considered and ultimately finalised.
Once the approval of your PR comes in, effectively your passport is now defunct for immigration purposes as regards Hong Kong because your Right of Aboard is reflected in the issue to you of a permanent identity card and that permanent identity card, therefore is your travel document in and out of Hong Kong, and your passport is no longer needed to be presented to an immigration officer at the point of arrival. Therefore, there’s no endorsement in your passport to reflect your PR.
I hope you find this useful.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
The working holiday visafor Hong Kong is designed for certain types of employment activity – but does this include freelance work or starting or your own business?
QUESTION
Hi
I have recently moved to Hong Kong with my partner (who has an employment visa) and I obtained a working holiday visa for 1 year.
My plan was to get over here and then look for work opportunities and then transfer over to an appropriate visa. I registered my own company in Ireland and it looks like the most work I will do here would be as a freelancer.
Am I able to work as a freelancer on the working holiday visa or do I need to get another visa – say the investment visa?
We do plan to be here a few years.
Thanks
ANSWER
The working holiday visa for Hong Kong is designed specifically to allow nationals of certain countries, not every country, to come to Hong Kong for a maximum period of twelve months with the primary intention to holiday here. And, as a result of the bilateral arrangements between several countries in Hong Kong, parties who hold a working holiday visa for Hong Kong are able to effectively work for up to four employers in that twelve-month period, and not being able to work for a single employer for more than three months at a time.
Anything more than that is a direct breach of conditions of stay. The programme is really all about sort of cultural exchange if nothing else, and doesn’t anticipate nor provide for holders of such visas to go out and work for themselves, that is ostensibly registering perhaps the sole proprietorship business and then undertaking activities as a freelancer.
Moreover, going to the next step and applying to incorporate a company and then starting to engage in business through that limited liability company is effectively not permitted activity under the working holiday visa.
So whilst you might be able to get away with your sort of plans on the ground as it were, to freelance or to start a business, if your long term intention is to stay in Hong Kong on the strength of the business that you’re planning to undertake it’s really important that you don’t be tempted to start that business whilst you’re a working holiday visa holder, and this is because if at a point of you subsequently making your application for a business investment visa, your activity whilst holding an working holiday visa will be disclosed to the Immigration Department, and they’ll know then that you’ve actively been engaged in activities which are a breach of your conditions of stay and that could lead to the Immigration Department considering a subsequent application less than favourably.
So, yes. If it’s your intention to freelance sort of starting a business, the moment that those intentions crystallise, irrespective of the immigration status you hold presently, you need to make an application for a business investment visa.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
