This is a sad situation for a couple who find themselves in a maelstrom of immigration difficulties caused by a less than sensible choice some time previously.
QUESTION
I am a permanent resident in Hong Kong and am planning to marry my girlfriend. My girlfriend is in detention prior to removal. She’s from the Philippines. I wanted to get a sponsored dependant visa for her after we get married. The problem we have is that she is now under detention in Hong Kong under Immigration Ordinance section 32. Due to the borrowing of a passport to others to use. She have already signed a letter with the Immigration Department that she will not come back to Hong Kong and will soon need to go back to Philippines. What is the chance of me getting her back once we get married?
ANSWER
Yes, I can state that you find yourself in a very difficult situation here. The likelihood of you being able to persuade the Immigration Department that your relationship is bona fide and has merits in of itself, coupled with the problems associated with her manifestly poor immigration record under express undertakings that she will not seek to return to Hong Kong, it’s, in my opinion, that the likelihood of you being able to bring his young lady back to Hong Kong on the dependent visa sponsored by you is probably very slim indeed.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
In this short piece I discuss how the Hong Kong Immigration Department assess the bona fides of a sponsor seeking Hong Kong dependant visa permissions for his/her family to join him/her in the HKSAR.
Over the last 20 years or so I have coined a number of phrases in Hong Kong immigration parlance.
‘Roof-Over-Head-Food-On-Table’ describes a situation where, if you are seeking to sponsor a loved one in order to join you in Hong Kong as either a dependent visa holder or, in certain circumstances, a prolonged visitor visa holder, the sponsor that’s going to be supporting that application needs to be of sufficient financial means to be able to provide a home to the loved one under the visa permissions, and also to be able to take care of their emotional, educational and financial and sustenance needs.
So, in that regard, the Immigration Department are looking to see that the sponsor literally can put a roof over the head of their loved one and food on the table of their loved one, in addition to all the other stuff that I mentioned as well.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
This situation occurs quite a lot especially for those employees who were originally summer hires and are on back to back employment contracts matching the validity of their limits of stay.
QUESTION
I am a Canadian currently employed in Hong Kong and have a work visa. If I plan to be absent on leave in the five weeks prior to the expiry of current limit of stay, can I apply to renew my work visa ‘in advance’ of the normal 28 day period? I intend to return to Hong Kong 3 weeks after my current visa expires and so be gone for a total of 8 weeks on leave. How can I handle my employment visa extension in this situation?
ANSWER
The Hong Kong Immigration Department see this situation quite frequently in actual fact, and so they do have developed a protocol to allow people such as yourselves who find themselves not really being in Hong Kong and available around about the time that their current visa comes up for renewal.
As you’re holding an employment visa, effectively the solution for you is to make your application probably six weeks before your current limit of stay expires, follow the normal processes which are detailed in the visa extension kit which is included as a link to this blog post, and also in your application bundle, include express representations as to the reason for why you’re making an early application, and also include copies of all the documents that substantiate the reason for you making that early application, so that the Immigration Department can conclude for themselves that they need to effect a positive act of discretion on an out of policy basis to allow your extension application to be processed slightly earlier than the norm, which would then effectively be completed in about five to ten days and giving you sufficient time to finalise these formalities prior to making your trip.
So that when you come back, you’ll have your visa extension fully completed and you won’t have to worry about it anymore. So, yep, it’s perfectly doable. Just submit all the supporting documentation in regard to the reason for the extension. And then you’ll find that the Immigration Department will play ball with.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Circumstances sometimes conspire against foreign national residents here who find themselves in a quandary as to whether or not their continuous ordinary residence here has been broken due to decisions made (voluntary or otherwise) earlier on in their lives in Hong Kong. In this situation, will an application for the Right of Abode fail?
QUESTION
“I have been resident in Hong Kong for 6 years and 2 months. First as a dependent and now under non local graduates scheme. I have had a residence throughout this period, owned a property for part of the period (sold due to divorce). But I was studying in Beijing for 2 years during this time and returning to Hong Kong during holidays and at least every 2 months. I also have a child in Hong Kong who lives with my ex wife who visits me regularly. Will my period of residence only be deemed to start when I returned to Hong Kong in February 2011 and re-secured an employment visa? Essentially, has the period I was travelling in and out on a visitor visa stopped my period of residence for Right of Abode purposes even though I was ordinarily resident under the plain English meaning. You may assume I have all necessary paperwork to show tenancies, bank details, tax returns etc.”
ANSWER
In order to qualify for the Right of Abode in Hong Kong, you have to show that you’ve been continuously an ordinarily resident for a period of not less than seven years. You need to upheld a residence visa throughout all of this time, and any absences that manifested themselves during those seven years need to have been of a merely temporary nature, as evidenced by what you leave behind to return back to at the end of your temporary stay abroad.
So in this question, the issue is whether the two years that you spent not holding a residence visa, being outside of Hong Kong, studying in Beijing, and then ultimately returning back to Hong Kong, whether that in your life circumstances, together with the fact that you have family in Hong Kong, or there’s a child that you’ve been returned back to throughout those two years, will that time spent in Beijing serve to break the continuity of ordinary residence for the purposes of that Right of Abode application?
In my experience, the answer is I think that you’ve probably broken your continuity of residence. Unfortunately, although the concept of permanent residency is granted on the strength of the notion of settlements, and you certainly have an opportunity to put forward an argument once you’ve been here for seven years to suggest that even though you did spend a couple of years on a temporary sojourn abroad, you did have everything in place throughout that time to suggest, through your pattern of behaviour, and the fact that you returned back to Hong Kong once you set to a complete, that that time spent away did not in fact break the continuity of ordinary residents.
But it’s one of those situations where you only know once you have made your application. The challenge, I think, is going to be that the Immigration Department is probably going to apply the hard and fast rule against you. Suggest that because you didn’t have a residence visa during those two years, and perhaps the circumstances in your life precluded you from possessing that residence in any event or by suspect.
But my earnest advice is get to seven years and give it a try. It doesn’t cost you anything. Application argue forthrightly that you were settled in Hong Kong throughout all that time. You did have a child, you did come by, it was just that you didn’t have the necessary circumstances to avail you with a residence visa for Hong Kong and consequently you were in a position to possess one.
That’s the argument that I had at the moment usually only a time spent in Hong Kong as a visitor during the state of administered flux. But give it a try, good luck.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
To what extend the salary can be replaced with performance-based equity compensation in case of a Hong Kong employment visa?
No one has asked me this type of question about compensation for employees for about 17 years now so I’m grateful to the questioner for raising it as she did.
QUESTION
I have successfully registered a business and been awarded an investment visa in Hong Kong.
The company is a start up with limited capital but big plans.
I have identified an individual I’d like to employ, have no doubt he would pass the approvability test, and don’t expect to have issues around quotas.
However my business cannot yet afford to pay a meaningful salary.
I’d like to compensate the individual with equity until such time as the business is generating enough revenue to pay market salaries – a situation both parties are completely happy with.
Is there any ability to sponsor an employment visa given this arrangement?
ANSWER
What a truly excellent question. And I’m sure that most entrepreneurs that have successfully secured an investment visa might at some stage look for the assistance of a third party foreign national to come into Hong Kong to assist them in their plans, and are obviously looking at an equity for compensation arrangement if that will in fact pass muster with the immigration department.
So the essential answer to the question is that yes, it is possible to have equity as a component for the compensation instead of salary, but it must not replace the salary under the General Employment Policy. The approvability test is effectively meaning that the Immigration Department are looking for a basic salary, and that basic salary should come in at the minimum levels, give or take HKD16,000 a month.
So if the value of this time is to be compensated in such a way that anything over the HKD16,000 a month is going to be reflected in an equity grant, then the Immigration Department should buy into that. So probably without too many questions asked on the basis that it’s properly documented and for all practical purposes, the party that’s receiving the equity grant is being compensated ostensibly for the professional nature of the contribution that he’s making.
So ensure that there’s a basic salary and anything above that compensated with equity grant should be fine. Of course, hanging above all of this writ larger were is what the Immigration Department will make of the application when it comes in. Given that, you’ve, I assume, just recently had an investment visa approved, did the potential for this engagement of this foreign national was it reflected in the representations that were made to the Immigration Department as part of your investment visa application? So will this come as a surprise to them or was it anticipated at all times? And how far along have you actually been able to progress your business since the fact of your investment visa approval in accordance with what the Immigration Department were expecting of you when they granted your approval.
So you need to look at where you are in the business,in addition to the individual special skills, knowledge and experience of Elliot and not really available in home to understand how the Immigration Department might respond to this questions such as, you know, have you recruited anybody else locally or is in fact this your first employee?
And as I say, if it is your first employee, was it anticipated in the business plan that the department saw from you originally? So take his application in the round when you’re considering structuring your argument, but also anticipate that as long as he’s getting the basic salary of about HKD16,000 a month with, the balance of his compensation being reflected in an equity grant it should be fine. I don’t imagine that you have too many problems. Okay.
I hope this helps.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Hong Kong is a small place with borders on our doorstep so how much time do you need to be physically in Hong Kong to retain your Hong Kong investment visa?
QUESTION
I would like to know, if I am able to hold a visa in Hong Kong, then what is the minimum time per year I need to stay in Hong Kong to still qualify as a resident?
I travel a lot, but am looking to set up a business in Hong Kong and would like to become a resident in Hong Kong but am afraid I might be out of the country in large periods of time.
Thanks
ANSWER
Really good question, this one. And I think you might be surprised at the answer in actual fact. As part of an application to secure a residence visa, in order to establish a business in Hong Kong, you need to go through the processes of showing you can make a substantial contribution to the economy of Hong Kong and get yourself a business investment visa.
And, at the time that you make the application, there’s no need to disclose to the Immigration Department exactly how much time you think you will be spending inside Hong Kong and how much time you think you’ll be spending away from Hong Kong. So the emphasis at the point of application should be on passing the approvability test.
Therefore, assuming you get approved, if you then go on to spend the majority of your time outside of Hong Kong, this doesn’t need to be a preclusion to getting your extensions. As you go through the one, two to three year pattern extension process after your initial approval, so long as you’ve got a really good business reason for being away from Hong Kong, as long as you have been.
Upon any review of your business undertaken as part of the investment visa extension exercise, you can clearly demonstrate to the Immigration Department’s satisfaction that you are indeed making a substantial contribution to the economy of Hong Kong. So, with the investment visa, indeed, for that matter, all residence visas, you must demonstrate that you have a need for the visa, and that is that you intend to be genuinely resident in Hong Kong. And if you can satisfy the Immigration Department about your genuine need, the question of time spent inside and also away from Hong Kong will really only present itself as an issue for you for deep consideration at the seven year mark when you’ve been continuously an ordinary resident in Hong Kong for not less than seven years, when you make your application for permanent residency, seeking to secure the right of abode, because the test for the right of abode says that any absences from Hong Kong in that seven years, either of a longer or short duration, must 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.
So typically, so long as you’ve got a genuine need to be resident and you’ve got a really good excuse or reason for why you’re spending a lot of time away and you’re maintaining the qualifying criteria all throughout the seven years that you, in this case, hold your investment visa, the time spent away shouldn’t represent itself as a problem.
However, come time to secure permanent residency, you will probably have a lot to answer for; and whilst it doesn’t suggest that automatically you might not get permanent residency, the analysis of what you’ve been doing while you spent all that time away from Hong Kong during those seven years will very much come into play.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
A frequently experienced conundrum: How can a foreign company temporarily sponsor Hong Kong employment visa permissions for its employees and contractors who need to work here in pursuit of a commercial arrangement which is of an indefinite or fixed duration here?
QUESTION
How can one visit and deliver short-term (typically 1-5 days duration) training courses in Hong Kong on behalf of an international training company headquartered in New York and which has a local office in Hong Kong.
The training would be delivered course-by-course under an ‘umbrella’ contract with the Hong Kong company i.e. no direct employee relationship, on an episodic basis to the Hong Kong office through an overseas Limited Company in South Africa whilst travelling on a South African Passport.
What visa and application process would be applicable? It seems that different countries tend to treat this quite differently with some granting a business visa on written request from the host company, or in other cases allow this type of activity under a short-term waiver e.g. Singapore.
I am sure this must be a common situation, but I can’t see how this can be handled. Hong Kong Business Visas appear to stipulate you can’t work or provide a service or am I misreading the intention? I hope that I have provided enough detail and it is succinct enough.
Thanks very much in advance and looking forward to your reply.
ANSWER
Yes, this really is a conundrum where you as a foreign company have received a contract to deliver services on the ground in Hong Kong, and now you’re attempting to understand what immigration permissions are suitable in your circumstances; and of course the Immigration Department’s website is not particularly lucid as to how you go about doing this and in actual fact you need to engage in a little bit of fancy footwork to achieve the immigration outcome that you’re looking for, but it is completely doable.
So first, let’s just deal with the issue of temporary visitor visa permissions and your ability to possibly deliver the training under the visitor visa. As a visitor you are not allowed to take up employment, whether paid or unpaid, without the consent of the Immigration Department. So business visitor, even though practically you get a 90 day period of stay when you arrived is not the correct immigration status in these circumstances, irrespective of how it works in other countries. Therefore, the question is begged as to how you go about creating a situation where your entity that’s delivering the services is able to properly sponsor the party that’s going to be practically delivering the services for immigration permissions during the time that the training is going to be delivered.
So in effect, what this is going to involve is your South African limited liability company is going to have to establish a representative office here. And, in the throes of establishing that representative office, all the corporate details and information of the South African company will be presented to the Commissioner for Inland Revenue who registers the presence of the representative office.
And then all the similar documentation that’s required for the registration of the representative office is submitted to the Immigration Department in support of a Hong Kong employment visa application, citing the newly established rep office of the South African company as being the sponsor of the permissions for the person that’s going to be delivering the training on the ground; there will have to be a contract of employment between the Rep office entity and the individual person that’s going to be providing the services and the approvability test in relation to that employment contract.
And the party that’s going to be delivering the services, will apply and will need to show that they do possess special skills, knowledge and experience of value not readily available in Hong Kong, but on the basis that party is effectively coming to Hong Kong with the South African entity, possibly even being the same owner of the South African entity that should just be a formality, but you will need an employment contract to cover those bases.
You’ll need to show the contractual paper chain between the various entities, New York into Hong Kong, then Hong Kong into the South African entity, effectively setting up the nexus for the Immigration Department so they can see how this commercial arrangement came into place and how in fact your South African entity and the individual himself who’s going to be delivering the training need to be on the ground for the purposes of fulfilling their obligations under this contract.
Now the question is also begged as to given the episodic nature of the training that’s going to be delivered in Hong Kong. In fact, should you be making an application for a twelve-month limit of stay which will cover all future sort of episodes during that time, or will the episodes be of such an infrequent nature that you’re going to have to make an application each time that you’re intending to come through to Hong Kong to deliver this training.
Of course much will turn on the frequency with which you’re supposed to be delivering the training and in fact exactly what the contractual paperwork between the various parties reveals as being the frequency for the delivery of the training. But as far as you possibly can, if you can make an argument to the department that the episodic nature will be very frequent such that it’s impractical for you to have to keep making a new employment visa application needs time to deliver this temporary training, then you could probably get the Immigration Department to grant you a one-year period of stay to cover all these bases.
So just to recap, there is a solution. It involves your South African company establishing a representative office. You need to make an application for a Hong Kong employment visa to be sponsored by that Hong Kong rep office of the South African company. You’re going to have to disclose all the commercial arrangements that have given rise to your opportunity in Hong Kong. You’re going to have to show to the Immigration Department what the track record of your rep office sponsoring entity is in South Africa. So that’ll require you revealing copies of your financial accounts and another information that will allow the Immigration Department to conclude that the Hong Kong Rep office can in fact be a bona fides sponsor for these foreign – national employment visa permissions to be granted on an episodic or temporary basis.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
