Hong Kong Visas Made Easy

Is It Possible To Change Employment Visa Sponsorship Where The Employer Has Not Yet Established A New Company In Hong Kong (i.e. Has No Business Operations Here Yet)?

Posted by The Visa Geeza / in Employment Visas, Your Question Answered / 1 response

What’s the story where a new company in Hong Kong has not yet set up shop in the HKSAR but want to hire staff? What do the Immigration Department make if this situation when it comes to visa sponsorship for foreign employees?

 

QUESTION

Hello Visa Geeza,

Thanks in advance! Your website has brought clarity on a number of questions I had on the visa process.

I do however have a few more.

I’m currently employed by a Hong Kong limited company, in the professional services industry, as a U.S. citizen.

I was originally invited to Hong Kong to work for this company, and arrived in Hong Kong in June 2011 (approximately 3 years and 3 months ago) under an employment visa sponsored by the said company.

I have since renewed my employment visa with the same company in June 2014, and it will expire in June 2016.

I have since been offered a new job with a different company located in Singapore that has no currently business dealings in Hong Kong.

The new company in Hong Kong does not deal in professional services, but industrial chemicals.

The parent company has been established in Singapore for the last 15 years with offices in the U.S. and Europe.

The new company in Hong Kong does not currently have any employees, nor do they have a current/valid business registered.

As part of the new job, they have asked that I set-up an office and register a new business in Hong Kong focusing on sales/trading of their products with me being the sole director/shareholder of the intended new Hong Kong office.

The intentions are to leave my current company, and establish/register the new business within the next couple of months.

As I begin the process to apply for an investment visa (I believe this is the appropriate visa rather than an employment visa) and register the new business, I have yet to notify my current company of my intentions to resign.

No official documents have been filed on either end for the investment visa or business as I’m trying to determine the right course of action.

Given my intentions to apply for an investment visa and register a new business as the sole director, I’m wondering what steps need to be completed first to ensure I have the correct visa application process in place (sponsored by the new company in Hong Kong) to avoid any visa breaches, and which does not jeopardize the business registration, or vice-versa.

This seems like a chicken versus the egg dilemma…

My goal is to successfully apply for the investment visa under the newly formed company, and to keep my path towards Permanent Residency uninterrupted since I’m already half way there!

I have rented my apartment for the 3 years 3 months I have lived in Hong Kong, established bank accounts, utility services/accounts, and etc in Hong Kong.

Again, thank you for your help!  This site and your services are invaluable for foreigners looking to establish ourselves in Hong Kong!

Hopefully, I have given a detailed account for your guidance.

ANSWER

Very interesting question with lots of moving parts. So, I’ll get straight into it. Effectively, if you’re going to change your employment visa category through to investment from employment, then you need to pass the approvability test that shows to the extent that you can make a substantial contribution to the economy of Hong Kong.

However, I suspect in the way that you’ve couched the language of your question,  you’ve interpreted being a director and a sole shareholder as effectively representing ownership by the Singapore parent entity, with you being the single executive that’s responsible for the development of the legal establishment and the commercial operations going forward.

So on the basis that it’s the parent company who’s going to be the shareholder, that is essentially the new Hong Kong entity is going to be a wholly owned subsidiary of the Singapore office, then you will not be an investor, you will be an employee for the purposes of your immigration status.

So you would be applying to change your visa sponsorship from your current employer through to this new employment scenario. Now, because it’s a completely new business situation without any legal establishment or any commercial operations or infrastructure at all on the ground here, effectively, what you’re going to have to do is to steer your parent company employer in Singapore to fund the necessary infrastructure arrangements so the Immigration Department can be satisfied that the new subsidiary in Hong Kong is going to be a suitable and credible sponsor for the purposes of your employment visa permissions.

And to that end, clearly you’re going to have to incorporate a new company and get it registered under the business registration arrangements and get a business registration certificate issued to you. You’re going to have to procure suitable business premises for you to report to work to each day. And you’re going to have to set out what your staffing plan is as you roll the operations out in Hong Kong, in the wake of having successfully secured the Immigration Department’s permission to change your sponsorship into the hands of this new employer accordingly.

Now, as part and parcel of that exercise, because the Singapore entity doesn’t have a presence here in Hong Kong yet, effectively, as a new business scenario, you’re going to have to show to the Immigration Department documents as to the  Singapore business, its commercial performance, its accounts, what it’s doing in Singapore, how long it’s been in business, all of that kind of good stuff to allow the Immigration Department to rest assured that the new Hong Kong operation, as a wholly owned subsidiary of the Singapore business is resourced sufficiently enough to satisfy the Immigration Department’s requirement that the new Hong Kong entity can be a suitable and credible sponsor for your immigration permissions.

So in that respect, assuming that you are going to be the founding director, but the shareholding is going to be held in the hands of the uh Singapore company, then, effectively you are on your way on the basis that you can get the infrastructure in place and your plans laid out for the Immigration Department to be satisfied that this business arrangement is suitable for the purposes of Hong Kong’s requirement for Singaporeans to make a substantial contribution to the economy of Hong Kong.

Now turning, to the question of you switching industries from professional services through to chemicals trading. Well, as long as you’ve got in your background the requisite skills, knowledge and experience to be undertaking these types of activities, then as a founding executive in this situation if you’ve got a good track record as a professional previously, then I suspect that there’ll be sufficient enough meat in your sandwich, as it were, to persuade the Immigration Department that you do possess the requisite skills, knowledge and experience to do the job and that somebody locally can’t be expected to uptake that work instead of you. But aligned with that will be a requirement for the Immigration Department to be advised as to what the future staffing complement of the business in Hong Kong is going to look like and where you fit in the overall sort of organisational framework what you’re going to do as regards implementing those new jobs.

So all things considered, this is an application that from the sounds of it appears approvable; you’re just going to have to grasp the nettle and recognise the fact that this would not be an investment visa application as such, although the Immigration Department as it is a new business situation, will apply elements of the investment visa provability test to it, that is Singapore companie’s to show that through the establishment of its operation in Hong Kong, it can make a substantial contribution to the economy of Hong Kong.

And that from your perspective as an incoming employee, that is employee number one, you do possess special skills, knowledge and experience of value to and not readily available in Hong Kong. So if you can put all that together then it seems to me that you’re probably on your way.

On the other hand you stated that you are going to be the sole shareholder. Now if you are a sole shareholder then, effectively the situation is completely different because it’s not going to be a wholly owned subsidiary scenario. It’s going to be effectively the Immigration Department looking at your ability to make a substantial contribution to the economy of Hong Kong.

And in that regard then I suggest that you look really in detail at the investment visa approvability criteria detailed elsewhere on the website. But, as I say, my sense is from how you’ve couched your question that you are in fact not going to be an owner of this business, the business in fact will be owned by the Singapore parent, and given that you’ve got a sufficient period of time left on your current limit of stay, you need to make an application to change your sponsorship, and you’ll only be able to do that once you’ve laid down the infrastructure for the new commercial presence and legal presence in Hong Kong. So the sooner you crack on with that the better. And, insofar as your, permanent residency scenario goes well, as long as you maintain your continuous ordinary residence in Hong Kong all throughout the period of transitioning from your old employer to the new employment arrangements. And then in the wake of getting the permission of the Immigration Department to change your sponsorship into the new employer arrangements, you continue to be ordinarily resident in Hong Kong. Then you’ll maintain your present trajectory through to an eventual seven years continuous ordinary residence so that when the moment comes for you to be able to make an application for the Right of Abode, you’ll be able to do so.

And now just a note on the practicalities of this type of application: it’s firstly incorporate, get the business registration certificate, secure clear arrangements for your business premises where you’re going to be reporting to work to each day. Don’t expect that you’ll be able to run this business from your spare bedroom or your kitchen table. The immigration department won’t buy into that. You’re going to have to have dedicated business premises. Immigration Department are going to want to see, as I said, a staffing plan and that the new company bank account is properly funded to be able to finance operations. You then, once all that’s in place, make an application to adjust your sponsorship from your old employer to this new arrangement. It’s a fifth floor application and you’ll find that it probably takes about between six and ten weeks for the Immigration Department to finalise your case, given that it is a new business situation. Okay, so as I said, there’s quite a lot of moving parts to this but I see this scenario happen all too often and as long as the Singapore parent, in your instance, is a decent sized operation, I  think you’ll find once you’ve got your infrastructure on the ground here that the immigration plan will more than likely buy into the plan and allow you to adjust your sponsorship accordingly.

Okay. Hope you found that useful.

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I Have Been In Hong Kong For 2 Years As A Visitor And Have 2 Work Visa Refusals – What’s The Risk Of Refused Entry Again In My Circumstances?

Posted by The Visa Geeza / in Employment Visas, Refusals & Appeals, Visitor Visas, Your Question Answered / No responses

How is the Shenzhen Shuttle impacted where there is a history of long stay visits in Hong Kong combined with multiple employment visa refusals?

QUESTION

Hi,

I have been in Hong Kong for 2 years as a Visitor and my work visa application was denied for the second time a couple of weeks ago.

My visitor visa doesn’t run out until next week. I wanted to ask if my refused visa application will have an impact on my re-entry when I go to Macau to renew my visitor visa. I’ve been going to Macau for renewal every few months and there hasn’t been a problem but all of those times, I either wasn’t applying or it was in progress.

Now that it has definitely been denied, how heavy is the risk that I will be told to go back to Switzerland? (I have a Swiss passport).

I also applied for a Work Holiday visa a couple of years ago that was denied.

My boyfriend lives here with an Italian passport and so I’m very worried about possible separation.

ANSWER

When you present yourself for admission as a visitor to Hong Kong, the examining officer at the airport or at the boundary is assessing your bona fide as a visitor. And in this regard, it takes into consideration a number of factors. He does a risk assessment in terms of, you know, who you are, how old you are, possibly what you look like, an assessment into your means, have you got a return ticket, etc.?

They will also look to see your pattern and frequency of visits to Hong Kong. And essentially, if you’ve been coming and going nonstop for two years now, engaging in what I’ve couched as the Shenzhen shuttle, albeit going by Macau, you are, in any event, irrespective of what’s happened down at the Immigration Tower, regards your previous visa refusals, at risk of not being assessed as a bona fide visitor to Hong Kong if for no other reason that the officer can see you’ve been here for two years and may suspect that you’ve been breaching your conditions of stay by uptaking unauthorised employment.

So, presently, when you present yourself, you may get an experience with an officer where he essentially waves you through at the point of doing the assessment. The immigration officer at the border or at the airport won’t have immediate access to the knowledge that you have had previous visa applications refused. But once they do stop you and inquire into further details as to what’s keeping you in Hong Kong, then clearly that will come out. And, the fact that you do have efforts on file of trying to take up residence for employment purposes that have been repeatedly refused makes you a very high risk candidate for admission as a visitor.

So, you are essentially at risk in any event, but elevated. So because of your history of prior refusals, by the way, your working holiday visa was refused not because there’s anything wrong with you as an applicant other than the fact that you’re a nationality that doesn’t qualify for one.

So it’s your two prior employment visa refusals that are an issue for you. But then you see, you’ve got the issue as regards your relationship with your boyfriend and that is clearly a reason for you spending as much time here as you are. Is it sufficient for the immigration department to just admit you nonetheless? Well, given that they won’t have all the facts and information and evidence on hand at the time that they’re assessing you for admission as a visitor the next time around it’s difficult for them to essentially rely on the representations that you’ll be making to them as to the nature and the state of your relationship with your boyfriend.

So what I would suggest that you do to try to at least ameliorate this, if you do get stopped, is to have with you all his information. A copy of his passport, his visa label, a copy of his ID card, his mobile number. Indeed, a letter from him addressed to the examining officer at the airport or at the border stating that you’re in a loving, committed relationship and that he’s prepared to assume responsibility for you during the currency of your next visit; and it may well be that information could be just enough in a go or no go situation for the officer to admit you for a further three months.

However,  that approach is certainly not sustainable and you are in a sense relying on the discretion of the examining officer to cut you some slack in real terms. Because two years as a visitor is a long time. Your nationality gets three months. That’s a reasonable timeframe to be visiting Hong Kong as far as policy goes.

Of course I know that you do have a reason for being here longer than, but unfortunately immigration rules all over the world are such that they don’t allow unlimited de facto residents to people who visit; and you are at risk of the steam running out of your engine in this respect.

Now a longer term solution might be that if you’re in a loving committee life partner relationship and you and your boyfriend are both free to marry but choose not to, and you can show to the Immigration Department that during these two years you have been cohabiting in Hong Kong, then you may be able to secure a prolonged visitor visa upon application to the department on the strength that you are essentially de facto spouses.

Your boyfriend will clearly have to participate in this application and sponsor you for this; it’s an out of policy application. So there’s not even a section in the immigration department that’s set up to deal with these applications. You really are once again throwing yourself at the feet of the immigration officers to positively consider an application for you not to be separated from your boyfriend given the nature and the longevity and the committed sense of your relationship with them.

So there are plenty of resources on our websites that speak to prolonged visitor visas; the mere fact of having one in the pipeline, again, doesn’t automatically address your bona fide as a visitor when you are undertaking the Shenzhen shuttle; and because it does take between, well, six to eight months for these things to play themselves through, normally could be a little bit quicker; but normally, because it’s out of policy, they are quite sort of long in the applying. So you will have to run the gauntlets of the Shenzhen shuttle probably on two or three more occasions to you get an outcome on that application. So that’s really the sort of the lot of it for you, I’m afraid.

In a nutshell, there’s a bit of light at the end of the tunnel, but you keep relying on the Shenzhen shuttle, then I think you’re going to find sooner or later, the hammer’s going to fall, and the sword of Damocles will have worked to end your time with your boyfriend.

I hope you found that useful.

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Can I Remain In Hong Kong As A Visitor After My Employment Visa Expires?

Posted by The Visa Geeza / in Employment Visas, Visitor Visas, Your Question Answered / 1 response

Simple question this one with an easy answer and indicative of the fact that, even though quite a straight forward issue, the information is not otherwise readily available anywhere else on the web.

QUESTION

I am a Canadian citizen, working in Hong Kong holding an employment visa for 7 weeks. I want to stay after my job is finished (work visa will expire at the same time) to see Hong Kong, then travel to Macau and Thailand.

Do I need to have my visa changed from employment to visitor?

Thank you so much for your help.

ANSWER

At the time that your employment visa limit of stay is due to expire, if you don’t have the continuing rationale for remaining in Hong Kong as an employee, because your contract has come to an end and in any event, it was just a short term employment visa;nonetheless then, for you to remain in Hong Kong as a visitor will not be problematic at all, but there will be a process that you need to go through in order to achieve this outcome.

There are two ways to go about doing it. The first is to go down to the Immigration Department to the visitor extension section, wait probably three quarters of a day, and get yourself up to a maximum of possibly two week visitor visa extension upon request of an immigration officer going through the visa extension process, and they will readily grant you, no doubt, a two week extension to your present limit of stay, converting you from an employment visa holder to a visitor at that time.

So that should not be problematic at all. The real problem there, of course, is that even it’s going to take a long time, it gets very busy. And the visitor visa guys at the Immigration Department are  under a lot of pressure and they tend to be somewhat brusque in the way that they process such applicants. But you will get the extension, so don’t worry about that.

Alternatively, and ideally, what I would suggest that you do is – on the final date of your current limit of stay as an employment visa holder, take in a sense the 11:00 evening ferry over to Macau. Arrive in Macau and come back from Macau into Hong Kong on the very next ferry, which will bring you into Hong Kong on the next day, the day after your current limit to stay as an employment visa holder expires.

And at the point of arrival, the immigration officer will only be able to grant you a visitor visa because that’s the only status that will be open to you, given that your employment visa will have expired the day before. And as a Canadian national, you will get a 90 day period of stay; and that’s the same for most western nationalities, such as most Europeans and also Americans for that matter. And, at that point, you’ll be then granted the time that you need in Hong Kong to complete your final activities here as a visitor. Okay, I hope this helps.

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How Do I Go About Setting Up A Side Business To Complement My Full Time Hong Kong Employment Visa?

Posted by The Visa Geeza / in Employment Visas, Your Question Answered / 36 responses

Foreign national employment visa holders in Hong Kong are quite often interested in setting up a side business…

QUESTION

I am currently employed full-time by a company in Hong Kong. They successfully sponsored my Hong Kong employment visa and I just started my job 2 months ago. All is going very well.

But I would like to register my own business, because I see a chance to act as middle-man for service exchange between China and Europe, and would like that to be done in an official, legal manner.

A recent podcast answer of yours said it would be possible for me to request permission to join in a “side business”.

Does a “side business” involve getting others to register the company, and joining as partner?

Or does it simply mean I can register myself but there are restrictions on what I can earn or do?

Can you please advise on how I can actually go about setting up a side business and then getting the permission of Immigration here to be able to do this?

Best regards, and thank you for sharing your expertise in this manner.

ANSWER

I’m really grateful for this question because it gives me an opportunity to discuss how one goes about establishing a side business. If you’re here as an employee sponsored by an employer and your employment visa has been granted for you to do the work to that employer, but the side business has attractions to you and so you wish to get the permission of the Immigration Department to joining that side business to supplement what you’re doing with your formal full time employment.

Firstly, to establish a side business, you need to get the permission of your existing employer in writing, stating that they have no objection to joining in the side business. And then you need to ensure that you have a business entity properly registered in Hong Kong to your name, not to business partners as such, although you can have partners in a side business, but normally the Immigration Department are expecting that your side business is you doing some stuff that is in addition to your primary employment, as I say, that your current employer has no objection to engaging in.

So you register, typically a sole proprietorship, which is the simplest form, a business entity in Hong Kong with the Commissioner for Inland Revenue, which means you go down to the revenue tower in Wan Chai, which is next to Immigration Tower, and apply for business registration certificate, which is a simple exercise, filling in some forms and presenting a copy of your Hong Kong identity card and away you go.

At that point you’ll be issued with a business registration certificate once you’ve paid the fee, which is a little over HKD2,000, which is an annual fee, by the way. And once you have got your business registration certificate, you then effectively write to the Immigration Department seeking their permission to join in as side business with the consent of your existing employer.

And that application bundle itself will be including the letter from your employer, a copy of business registration certificate, short synopsis of what you’re planning to do with your side business, and showing also that your activities will contribute to the economy of Hong Kong. So that’s inimical to your argument. It’s not a long and complicated process. It’s relatively straightforward. The vast majority of these applications do get approved by the Immigration Department on the basis that it’s merely a business on the side. It’s not going to in any way conflict with your primary employment activities, which, after all, are the reasons why you’ve been granted permissions to remain in Hong Kong in the first place. That application process normally takes about four weeks to finalise, so it certainly doesn’t involve anybody else assisting you in respect of this side business. It’s expected that you’re going to be undertaking this business by yourself, as I say, as a supplementary activity to your core employment activities with your sponsoring employer.

Okay. Hope you found that useful.

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If I Hold An Employment Visa In Macau And Hong Kong Simultaneously But Live In Hong Kong Should My Wife Get A Dependant Visa For Macau Too?

Posted by The Visa Geeza / in Employment Visas, Family Visas, Long Stay & PR, Your Question Answered / No responses

Life can get a bit complicated if you work in 2 places at the same time…

QUESTION

I work for a Hong Kong company in Macau and my wife is my dependent in Hong Kong where we live.

My colleague was the same but has now been employed by a Macau company.

Does this change his wife’s dependency status in Hong Kong?

And should she become a dependent in Macau?

He is, as myself, a Hong Kong resident.

Thanks!

ANSWER

The real crux of the issue here is if your friend is going to secure an employment visa in Macau and is going to be physically resident in Macau. And clearly, in that case, he wants his spouse also to be resident with him in Macau. If during this exercise, the employment arrangements in Hong Kong for your friend terminate, and at the time that his next employment visa extension for Hong Kong, when that comes due, he doesn’t have a Hong Kong employment, then he will not be able to secure an extension to his employment visa in Hong Kong, even if he has an employment visa in Macau.

And consequently, his wife, who has a dependent visa sponsored by him on the basis of his employment in Hong Kong, will not be able to get an extension to her dependent visa. So that will effectively leave her in a kind of immigration limbo between Hong Kong and Macau without any specific residency permissions, unless she goes ahead and makes an application to get a dependent visa on the strength of her husband’s employment in Macau, that’s a Macau dependent visa, not Hong Kong dependent visa.

So in reality, if they’re going to be living in Macau, then she needs a dependent visa to support her husband there, which will be granted on the strength of the fact that he’s got an employment visa in Macau; if he doesn’t have an employment visa in Hong Kong, as I say, she won’t be able to get a dependent visa for Hong Kong any longer because the conditions that are in play for successful application won’t exist.

Therefore, she’ll need to get a dependent visa for Macau. You can’t live in Hong Kong and have a dependent visa in Macau, and you can’t live in Macau and have a dependent visa in Hong Kong are two separate jurisdictions. It isn’t immediately clear, however, from your question, when you say that he’s a resident of Hong Kong, whether he’s a permanent resident or he’s in fact an employment visa holding temporary residence, the initial advice that I’ve given you is on the assumption that he’s a temporary employment visa holding resident.

If, on the other hand, he is a permanent resident, then he will be able to sponsor a dependent visa for his wife, notwithstanding the fact that he continues to work in Macau or will be working in Macau for the foreseeable future. So that kind of takes care of all of the issues in relation to dependent visa states and the circumstances and facts, if you essayed them.

One important thing to remember in all of this, however, is  for any applicant that is planning to go on to secure a permanent residency in Hong Kong with the strength of having been continuously nor resident in Hong Kong for a period of not less than seven years, needs to appreciate that both Hong Kong and Macau are separate immigration jurisdictions.

And if you are living in Macau while still holding a residence visa in Hong Kong, and the amount of time that you are spending in Macau overshadows the time that you spend in Hong Kong and you are unable to show to the Immigration Department that you have been settled in Hong Kong throughout all of this time, even though you’ve been holding a residence visa for Hong Kong, but you’ve been physically living in Macau, time spent in Macau, unless you’re very careful about how you construct your affairs, may serve to break your continuity of ordinary residence for a Right of Abode application subsequently.

So, as I said in the title to this post, life can get a little bit complex where you’re effectively living in one place, but potentially working in two countries, or if you are indeed working in Hong Kong presently, and in the thrills of relocating to work in Macau, it can get a bit messy, a bit complicated.

But that notwithstanding, I hope you found this useful.

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How Does Time Spent Between Residence Visas Impact On Your Eligibility For The Right Of Abode In Hong Kong Subsequently?

Posted by The Visa Geeza / in Employment Visas, Long Stay & PR, Your Question Answered / No responses

Does time spent ‘between’ residence impact on your eligibility for the Right of Abode in Hong Kong after 7 years ?

QUESTION

I am a Canadian citizen living and working in Hong Kong for the last 4 years.

My employment has ended and I have not yet been able to obtain a new offer of employment in order to arrange for a change of sponsorship.

Since my authorization for stay expires on 4 January 2015, I anticipate I will need to exit and re-enter as a visitor in order to continue looking for employment.

With a mind towards eventually hopefully applying for PR status, am considering the possibility of registering for language lessons in a suitable program and applying for a student visa.

The provider has verified they can sponsor a student visa for a certain length of course.

I am still under my current apartment contract in Hong Kong.

My question is, if I can file the student visa application on or before the expiration date of the work visa, will that be sufficient to support a claim later to claim the time as ‘ordinarily resident‘ in Hong Kong until I can find other suitable employment?

What if the student visa application is filed within 2-3 weeks after the expiration of the employment visa?

Finally, will transitioning from employment, to student, back to employment visa be a liability in an eventual PR application, or will ImmD only look at the fact that the time in HKSAR has been covered by residence visas with only minor ‘visitor’ breaks in the middle while the paper work is being processed by Immigration Tower?

So, all things considered, does time spent ‘between’ residence visas like this impact on eligibility for the right of abode in Hong Kong allowing me to qualify for PR after all?

Thank you.

ANSWER

Yes, you’d be surprised that this question presents itself in many guises quite often, and the answer is actually quite favourable for you given your circumstances. The Immigration Departments are looking for settlement from an applicant for the Right of Abode after seven years, because the test for approval is continuous ordinary residence for a period of not less than seven years, where any absences from Hong Kong in that time have been of a merely temporary nature; and if you find yourself not having a residence visa, qualifying under the concept of ordinary residence for a state of what I’ve called administrative flux, where you essentially are spending time on a visitor visa rather than a formal residence visa, due to you essentially moving from one visa category to another as you organise the permissions of the Director to allow you to undertake new residence type activity here, that time spent during a state of administrative flux doesn’t break your notion of settlement as long as you’re physically in Hong Kong during that time, and from an immigration perspective, earnestly trying to bring about the circumstances that will allow you to continue to reside in Hong Kong.

So in your instance, if your employment visa is about to expire and you decide that you’re going to become a student, then as you transition from your employment visa to your student visa, holding a visitor visa in the interim, then the Immigration Department will not allow that to break your continuity of ordinary residence.

And similarly, when you finish being a student and go back to employment, as long as you’re physically in Hong Kong and you’re not abandoning your settlement, and you’re earnestly trying to bring about the circumstances that allow you to argue that you’ve been settled in Hong Kong, that the time spent on visitor status, as I say, moved from one status to another, resident status to another, doesn’t break your continuity as long as you’re clearly settled throughout all of that time.

So essentially you don’t really have any problems, I would say as long as you are not on visitor status, if that’s what you need to hold. While the circumstances present themselves for you to get your student visa or subsequently your employment visa, you’ll find that your continuity of ordinary residence at the seven year mark will not be broken.

So, the amount of time that you cite in your question, two to three weeks after your employment visa ends, before you get your student visa issued, that’s certainly not going to break your continuity of ordinary residence. In my experience, it’s usually no more than three or four months visit or status that presents itself as a problem.

So, if you find yourself with a visitor visa that is going to be sort of three knocking on four months old, I would be a bit circumspect about trying to get yourself a residence visa as soon as you possibly can. But otherwise, in the circumstances as you’ve described them in your question, I don’t believe you’re going to be breaking your, continuity.

And I hope that it all comes good for you in a good timeframe, so that you don’t have to worry about it too much later down the track when you make your application for the Right of Abode at seven years.

Okay. I hope you found that useful.

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What Happens To My Potential For The Right Of Abode In Hong Kong If I Leave My Job A Few Months Before My 7 Year Anniversary?

Posted by The Visa Geeza / in Long Stay & PR, Your Question Answered / No responses

So, if you plan to leave your job a few weeks before your 7 year anniversary how will this impact on your application for the Right of Abode in Hong Kong?

QUESTION

I‘m Australian, and have an employment visa in Hong Kong currently, but I wish to resign from my present job.

Having said that, I might not be able to apply for a new employment here so soon, but I wish to get right of abode in HK.

My 7th year anniversary is in July 2015.

However, if I resign now, my employment will cease in April; my resident visa ends 2016 Jul.

A few queries:

1. Will my employment visa expire when my employment ends and will I still be able to stay in HK after April?
2. If I stay in HK unemployed till July, can I still apply my right of abode then?
3. If I leave HK in April, and return to HK in July, can I still apply for the right of abode in Hong Kong then?

Many thanks!

ANSWER

This question seems to raise its head very frequently, and I’m pleased to be able to address it one more time in the context of these circumstances. So, just to recap, when you get an employment visa, you get two privileges. You get the privilege to work and you get the privilege to reside.

The privilege to work is limited to the sponsoring employer. When you stop working for your existing employer, your privilege to work ceases, but your privilege to reside continues until your current limited stay expires, in this instance sometime in 2016, or until the Immigration Department take it away from you.

Well, the Immigration Department very rarely indeed take this status away from you. So, if it’s your intention to cease working for your existing employer in April,  but you’re then going to have a continuing limit of stay manifested in your passport that allows you to reside through to July 2016, some 15, 16, 17 months later.

And clearly you’re going to be in the driving seat to maintain your residence in Hong Kong for the purposes of your Right of Abode application, where the test for approval is, you need to show that you’ve been continuously and ordinarily resident in Hong Kong for a period of not less than seven years, where any absences from Hong Kong in that time have been of a merely temporary nature, as evidenced by what you leave behind to return back to at the end of each temporary stay abroad.

Moreover, you need to have had back to back residence visas in Hong Kong in order to qualify and you need to be clearly settled in Hong Kong at the point of view making your application whilst you’re also making a declaration. To the extent that you’ve taken Hong Kong as your only place of permanent residence, so insofar as you leaving your employer in April goes, and then qualifying for seven years anniversary of continuous ordinary residence come July of this year, then you’re certainly in the driving seat to progress with that application, notwithstanding the fact that you don’t have an employment in play at the time that you do make your application at the seven year anniversary mark, bearing in mind that you need to show to the Immigration Department that you remain settled in Hong Kong, you need to be a tad circumspect about quitting in April and then going off on a jolly around the world doing all kinds of interesting things and thinking, well, then I’ll just drop back into Hong Kong around about the seven year mark, push forward my application for the Right of Abode.

As I said, I suggest that you be a tad circumspect about this, because your rationale for the residence that you’ve got is employment. Now, if you cease working for your employer prior to you having converted through to permanent residency, the onus is on you to show to the Immigration Department that during the weeks and months in the wake of you having left your existing employer, you’ve attempted to bring about the circumstances such as you can, to re invoke the essential rationale for you having been granted that visa in the first place, which in your instance, clearly is an employment visa.

So, yeah, by all means, you can go off and take some time away. It’s fairly reasonable. You stop working and you want to go for sort of blow out the cobwebs, that’s perfectly okay. But it’s really important to understand that you’ve got to leave behind in Hong Kong all the vestiges of your ordinary life such that you can return back to it and pick up from where you left off once you have been able to clear a pathway for your future endeavours here.

So, yeah, just to answer your question specifically, one by one, will your employment visa expire when your employment visa ends, and will you be able to stay in Hong Kong after April? Yes, clearly, as I’ve just explained, you will be able to do that; and if you’re in Hong Kong in July and you make your application for the Right of Abode, but you don’t have an employment at that point, yes, you can make your application, but stand ready for the Immigration Department to possibly come back and ask you some questions about what you try to do to bring about the circumstances for continuing employment in Hong Kong so they can be satisfied that you haven’t in any way abandoned your settlement with your determination to leave your work.

And then finally, if you leave Hong Kong in April and return in July, can you still apply for the Right of Abode in Hong Kong? Yes, you can. But again, the onus is on you to ensure that if the Immigration Department need evidence as to the state of your mind when you exited Hong Kong in April, that it was your intention to depart temporarily only and not leave on a permanent basis.

And that gets to the heart of settlement. So I would advise that if you’re going to go off, then leave behind in Hong Kong all the vestiges of your ordinary life, not least your accommodation arrangements and a mobile phone and everything else that goes with that. So that once you’ve blown off the cobwebs and you do return to Hong Kong, you’re in a position to make your application for the Right of Abode without compromising the notional idea of settlement at the time that you make that application, given that you won’t be in gainful employment at that moment in time.

Okay. I hope you found that useful.

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