Hong Kong change of employer application – how can you readily manage the should-you-resign-before-your-change-of-work-visa-sponsorship-application-has-been-approved conundrum?
QUESTION
I have held a Hong Kong work visa for 2 .5 years now and I am currently in the process of finalizing an offer letter with a new employer here.
I need your advice in relation to the timing of me notifying my current employer that I am set to leave.
So should I resign after a sign the offer letter or wait for my change of employer / work visa application to get approved from Hong Kong Immigration Department?
ANSWER
The Immigration Department are very familiar with this problem and therefore they work the system to the extent that they will receive an application from you in anticipation of you joining a new employer, and as they give due consideration to the application and they are about ready to approve your application, they will then ask you to supply what we’ve couched as a bye-bye letter, which is essentially correspondence between you and your employer, which speaks to the final date of employment termination in your current job.
And when you submit a copy of that, and usually it’s a copy of your resignation letter or if you’ve been a redundant, your redundancy letter, but specifically, if you’re still employed and you want to move to a new position, it would be a letter of resignation from you, acknowledged as received by the current employer, and on that letter will be the final date of employment termination.
And when you adduce that letter to the Immigration Department upon their request, they’re essentially sending you the signal that your application is about to be approved, and therefore you can quite safely resign from your current employer, knowing that the moment that you submit your bye-bye letter to the Immigration Department, they will issue you a letter of approval stating that you’ll be able to uptake the new employment normally from the day after the date on your bye-bye letter.
So that’s how the Immigration Department manages that process.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Short period of time away from Hong Kong break my continuity of residence?
Sometimes, continuity of ordinary residence can inadvertently be broken due to factors outside of your control…
QUESTION
I recently graduated from a Hong Kong university after 2 years of permanent study.
Due to circumstances I had to return to my home country for a few months, however I am due to return to Hong Kong next month to take up employment and apply for a Non-Local Graduate Visa.
The test for the Right of Abode in Hong Kong is that you need to show that you’ve been continuously and ordinarily resident in Hong Kong for a period of not less than seven years, and that any absences from Hong Kong in that time need to 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 to get to the heart of your question, there are a number of issues that need to be factored into the mix; the first is the time away from Hong Kong. If it has been more than a few months, then arguably you’re going to have to have a really good explanation as to why you have spent that time away from Hong Kong, and more importantly, as part of that explanation, be able to demonstrate that you still had continuing intent to remain settled in Hong Kong throughout that time, and therefore, an analysis of what you had left behind to return back to will definitely fall into the mix. And because there’s not a great deal of facts available to me on the question, it’s difficult for me to particularly drill down on how your circumstances might be perceived by the Immigration Department at the point of view making your application progressing your claim for unbroken continuity of ordinary residence.
Having said that, you also need to possess a residence visa in Hong Kong throughout all of that time. So if you have finished on your student visa and have not yet moved into the realms of the privileges under the Immigration Arrangements for Non-local Graduates, as a fresh graduate, then effectively, as I read your facts it seems that when you come back to Hong Kong, you’re coming back as a visitor.
So you’ve effectively relinquished a residence visa you’ve exited Hong Kong. You may or may not have left behind proof of your intent to remain settled here; and, for all practical purposes, you’ve given up your residence visa, now returned to Hong Kong as a visitor again.
And now you’re going to be making an application to adjust your status from visitor through to an employment visa predicated on the immigration arrangement for non-local graduates. Again, because you’ve had a break in your formal sort of back to back residence. That is, you haven’t gone directly from a student visa into a visa issue to you under the immigration arrangement for non-local graduates.
There is another question mark there as to the state of your mind, at the point of view making your exit from Hong Kong to attend to matters that you needed to take care of back in your home country. So, I mean, all things considered, usually if the break in back to back residence visas as a result, due to what I’ve called the state of administrative flux, then normally the immigration department don’t hold that against you and it tends not to break your continuity of or in a residence, and on the ROP 145 form, which is the application form for the right of abode that you will be completing subsequently, there is a section that you complete to indicate any absences from Hong Kong that have been more than six months. You offered an opportunity to explain what the purpose or what the reason underlying that absence from Hong Kong was all about.
If it’s less than six months, you don’t have to expressly state what that the reasons were for your time away from Hong Kong. But that notwithstanding, there is still an assessment of that time away from Hong Kong by the Immigration department to ensure that you have maintained your intention as regards your settlement throughout all of that time.
So for all practical purposes, then, you’ve got a little bit of a job of work ahead of you going forward, and in the final analysis, it will all depend on what the immigration department make of your explanations at the time that you make your application and what evidence you’ve got to show that even though you did temporarily depart it was your intention to depart temporarily.
And that the subsequent pattern of your behaviour and what happened immediately in the wake of your return to Hong Kong demonstrated that you had good reason for not being here during that time. And as soon as the circumstances overseas terminated such that you could get back to Hong Kong to continue your settlement, then you may be able to carry the day with the immigration department, but not clear cut, it will all depend on the exact circumstances of your situation.
Okay, I hope this helps.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
I am separating from my wife and she is refusing to keep me on her Dependent visa.
My visa expires in a month and my employers have always made it clear that they won’t sponsor Employment visas – and I don’t know what to.
Do I need to find a new job if I lose my Hong Kong dependant visa in this way?
How long would it take for a first time visa application?
Can I just keep quiet at work? They probably won’t check my visa status…
What would be the implications for that?
ANSWER
This is a scenario that presents itself all too frequentlyin actual fact, and on a previous occasion I have answered, this question. So at the beginning to the answer of this question on the blog you’ll find a link called marriage has irretrievably broken down. If you follow that link from 39,000ft that will give you a broad overview of the various immigration options that can apply in an instance where for one reason or another a dependent visa can’t be extended.
So essentially what you’re left with here is this idea that your current employer who normally would step forward to serve as your employment visa sponsor to allow you to adjust your immigration status so that you can continue to reside in Hong Kong notwithstanding the fact that your marriages are retrievably broken down.
It seems that that employer is not going to play ball with you. Therefore, in essence, you need to organise for yourself a new employment visa sponsor, someone who is prepared to play ball with you. The challenge that you are going to have here is that when you make your application, you will not be making your application within the auspices of your existing employment, you would have to be making your application from the perspective of a completely new employment. And in that regard, particularly if your dependent visa has expired at the time that you apply for a new employment visa you’re going to have to independently pass the provability test for an employment visa sponsored by a third party, arms length employer, namely that you possess special skills, knowledge and experience of value to and not readily available in Hong Kong, that no local person can reasonably expect it to take the work, that the compensation is broadly commensurate with market rates for the type of work, but most importantly in this particular instance that you are deemed a professional for the purposes of the general employment policy here, if you have a university degree with at least two years post graduation working experience in a managerial or supervisor in capacity, and the other aspects of the approvability criteria for an employment visa are satisfied, then you can expect to go on to get approved even though you’re coming off the back of a visitor visa which was only available to you in the wake of your dependent visa expiring, which in turn wasn’t being sponsored by your previous employer.
That is, your incumbent employer and normally the Immigration Department are positively minded to approve applications where there’s been an irretrievable breakdown in marriage and the dependent visa can’t be extended if the employment visa sponsorship that follows comes from an incumbent employer. So you’ll be losing some aspects of favourable consideration by not making an application with the support of your existing employer.
But if you can pass the probability criteria as I’ve just outlined anyway in the guise of a new employer, then everything should be okay. So that deals with essentially how you manage the situation with a new employer who’s going to be in a position to sponsor a new employment visa for you.
In terms of you just keeping quiet at work, that is not letting your current employer know that there’s been a material change in your immigration circumstances that is not recommended, I repeat not recommended, because the moment that your dependent visa expires you will become not lawfully employable.
In any event, the moment your dependent visa expires you’re going to have to leave Hong Kong for a quick trip to Macau and then come back and re enter as a visitor, and then maintain that status until you’re able to reorganise a new residence visa for yourself ostensibly on the strength of a new employment offer that you’ve got.
But under no circumstances should you just stay quiet because you’ll be breaching your conditions of state from the very first moment that you report for work whilst you’re holding a visitor visa. And the fact that they won’t check your immigration status really doesn’t absolve you from the responsibility to maintain that you are compliant in your immigration arrangements here.
And the implications are, well, bad. Very bad, potentially jail, serious fine, and will certainly disrupt your residence in Hong Kong. So unfortunately whilst your circumstances are not great you don’t have a lot of options available to you, unfortunately. But as I say, if you’re able to secure a job offer from a new employer and in the context of that job offer you are deemed a professional, then there’s no reason realistically we can’t expect to be able to adjust your status through from whatever you’ve got at the time that you make that application through to employment so that you can remain in Hong Kong.
So I think that’s about it. Application to change your immigration status through to an employment visa sponsored by a new employer should take between four – six weeks from the day that you supply the immigration department with all the papers that they need to give due and full consideration to the application.
Okay, I hope you found that useful.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Freelance writers & reporters in Hong Kong are often faced with a round-pegs-in-square-holes visa situation that is not easily resolved.
This post attempts to deal with the challenge of visa approvability for these people and shed some light on what is actually do-able from an immigration perspective.
QUESTION
I am currently a full-time reporter in Hong Kong, I have a work visa. I plan to resign soon for various reasons and would like to stay in Hong Kong and be based here as a freelancer.
Once I resign, what happens to my current work visa?
Can I stay until it expires? I read that I could, but that I could not work until I get a new one, is that correct?
I read also that I would need to create my own business in order to sponsor myself; is that a difficult process?
What kind of documents do I need to show to the Immigration Department, does it take a long time to get a reply and what is the success rate?
Thanks a lot for your help!
ANSWER
The question of suitable immigration status for freelancer writers & reporters in Hong Kong is a bit of a torrid one. It is very much a round pegs in square hole situation because without an employment contract in place there is no opportunity to be an employee, therefore an employment visa holder.
So the only other immigration status that is available to such freelance writers & reporters is the business investment visa. And the approvability test for business investment visa calls for demonstration that the applicant is in a position to make a substantial contribution to the economy of Hong Kong. And by definition the substantiality aspect of the approvability test is never satisfied where you’ve got a freelancer because for all practical purposes we’re talking about a one-man business.
Therefore a little bit of fancy footwork is always required when trying to secure the immigration department’s permission to be a freelancer in Hong Kong. And in this regard you very much need to make a business case. In my experience the process for securing a business investment visa, whether you’re a one-man business, or whether you’re going to ultimately be a bigger business than just that which is regularly reflected in a freelancer situation is that you make your application for a business investment visa as though you’re going to be bigger than potentially just a one-man band.
Recognising that even if your application is quite weak, the immigration department could approve you subject to business review at the end of the first twelve months. And in this regard they’re going to have a look to see if your activities can be said to be making a substantial contribution to the economy of Hong Kong.
So yeah, like I said, round pegs, square holes. I’ve detailed on this post effectively all the resources that you need to drill down on to learn what’s required to get yourself a business investment visa, including other documents that are required. To that end you’re going to need a sponsor for your application and that can be any permanent identity card holder who’s acquainted with you and in respect of your question about what happens to you once you resign, that is, to your current work visa.
The employment visa that you have at the moment comes with two privileges. The first privilege is for you to carry on the employment that you’re doing for your current employer, and the second privilege is your privilege to reside, which flows naturally from the privilege to work because you need to be allowed to live in Hong Kong in order to do the work that you’ve been authorised to do.
So once you stop working for your existing employer, your privilege to reside continues, but your privilege to work ceases and thereafter you’re not entitled to join in a business, establish a business, or work for anybody else without going back to the immigration department and getting their approval in advance of you taking up that new activity.
So your privilege to reside will continue until either the immigration department take it away from you, which they never do. They usually allow you the ability to continue to remain in Hong Kong to put in place the necessary bits and pieces that you need to move forward with the next stage of your life or until your current period of stay expires, whereupon you won’t be entitled to an extension because you don’t have the necessary conditions in play for the Immigration Department to give you one, and you’d be expected to leave Hong Kong when your current visa expires.
How long does it take to get a reply? Well, for all practical purposes, you’re looking at a two to four month timeframe for an investment visa approval. And the success rate? Well, that’s an interesting one, actually, because there are between 254 hundred approvals under this visa category issued each year, but there are about 250 applications received by the department each month. So when you net it out, it’s approximately a 15% chance of success. Now, that’s not to say that you won’t be successful in your application. It just goes to show that the Immigration Department systems are set up so that all comers are encouraged to make applications, but only the best cases ever get approved.
In terms of improving your chances of success, the longer you’ve spent in Hong Kong, the more likely it is the Immigration Department are going to buy into the idea that you’re going to be able to make a substantial contribution, particularly if you can show that in your industry, a large number of people that do the work that you do don’t do it under a formal sponsored employment visa type situation.
Because actually, the number of, for example, journalists in Hong Kong who would be full time employed on an employment contract sponsored by a publication, there’s probably not that many, all things considered, and is probably getting less and less with the state of print publishing these days.
So the departments are quite cognizant of the fact that the way that writers earn their living tends to sort of border on the freelance. But as I say, unfortunately, the approvability test for the visa category that’s available to you shows that you need to be in a position to make a substantial contribution, and that really then puts you sort of alongside all the other business investment. These are applicants who have to show that they’ve got resources and who have to show that the work that they do is going to ultimately result in a solidly entrenched commercial enterprise, because that’s the final outcome for an investment visa approval.
So, all things considered, the longer you’ve been here, the more likely it is that you’re going to get approved. You’re going to have to dress up your application in such a way as to address the issues that are detailed as being required to pass the approvability test.
That is all the information that’s in the resources appended to this post. It’s going to take you, as I say, two to four months to complete, and your chance of success is improved by the amount of time that you’ve been in Hong Kong, the closer you get to seven years.
Generally speaking the easier the immigration department are in applying the approvability test to freelancers. So, go for it. I wish you all the very best in that exercise, too.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Hong Kong Unconditional Stay Status? One of the more upsetting parts of being a Hong Kong immigration consultant is learning that one family member alone, due to an unfortunate combination of circumstances, finds herself the odd one out by not having been able to correctly manage her visa status here – and all, essentially, through no fault of her own.
QUESTION
“Hi, My mother married a Hong Kong-Chinese national (step father) and sponsored my stay in Hong Kong to study when I was a child. I stayed and grew up in Hong Kong for more than six years and was holding unconditional stay status. My parents opted to send me to Malaysia to finish my secondary school up to tertiary school. I was not able to come back within one year of leaving Hong Kong. Before I reached 18, my mother reapplied me for sponsorship, the immigration delayed the response for my application and when I ultimately reached my 18th birthday, then they informed me I was too old. I came back to Hong Kong four years after my departure and I was forced to be a Visitor.
I have heard some people with the same case as mine (departing Hong Kong for an extended amount of time for studies) and where able to keep their residence status because they were STUDYING when away. I really want to be reunified with my family even though it was more than ten years when I first left Hong Kong. Among my mother, father and two siblings I am the only one not holding a valid I.D. card because of this.
Any thoughts?”
ANSWER
This is a particularly vexing issue for the person who’s lost her unconditional stay status because as you can read from the question unfortunately it is meant the de facto segregation of her from the rest of her family members, which is a great shame in actual fact and I really feel for her.
The issue really boils down to the fact that once you get unconditional stay status effectively you have to meet the single condition of that stay, which is you have to make a physical entry into Hong Kong on at least one occasion in any given 12-month period of stay and if you don’t make that single entry into Hong Kong in those 12 months, the status of unconditional stay rue is relinquished by operation of law and that’s effectively what has happened to cause this problem in the first place.
And as we can read also the problems further compounded by the fact that as this lady was approaching her 18th birthday, although it’s not exactly clear how far in advance of our 18th birthday the application was made, but her mother made an application for a dependent visa for her and it would appear that by the time the dependent application was finalized by the department she’d crossed the 18th year boundary as it were into her birthday and she was no longer eligible for a dependent visa.
So consequently, the only immigration status that she has available to her is a visitor visa. Well that must feel terrible each time you come back to Hong Kong and know that all of your family members are complete residents and you’re just here as a mere visitor but as I say the problem stems from the fact that unconditional stays is simple and hard and fast rule: one entry over 12 months as is the dependent visa. Once you get to the age of 18 irrespective of the circumstances that surrounded the actual application itself, you’re no longer eligible for a dependent visa. So that’s kind of in a sense the bad news.
I do have a little bit of good news, which I’ll share with you subsequently but for the moment I’d just like to address the issue about these other circumstances that you’ve heard of where people who have departed Hong Kong for a period of time in order to study but have kept their resident status as a result of them studying. I suspect that what you have heard here is a slightly different situation.
It will relate to those people particularly the younger age who have had residence visas endorsing their passports and are then subsequently gone on to make an application for a permanent identity card and even though they’ve spent a great deal of time outside of Hong Kong whilst they were holding residence visas and the fact that they were studying abroad didn’t actually break their continuity of residence for the purposes of getting approved under ??the riot of a bowl?? which requires continuous boarding residents of a period of not less than seven years because any time that they would have spent outside of Hong Kong studying would have been done on the basis that each time they made an exit to go continue their studies overseas they were departing on a merely temporary basis only and consequently they subsequently returned to Hong Kong and had their residence status still valid inside the passports reflecting the fact that they do have the continuing connection to Hong Kong even though they were temporarily studying overseas.
So, I suspect that you can probably differentiate those cases from your particular circumstances, which as I say is really driven by the fact that you lost unconditional stay and then didn’t qualify for a dependent visa because of the timing issues.
Sad state of affairs but all’s not lost! You see my experience suggests that the Hong Kong Immigration Department will take your personal circumstances very much into account if you can get a job offer and then make an application for an employment visa, which would be in a sense your new rationale for remaining in Hong Kong because presently the Immigration Department don’t have any circumstances before them that will allow them to apply existing immigration rules and regulations to your circumstances to give you the opportunity to be together with your family.
That is normally a visitor visa that that’s out there for you. However, you can procure a job offer and get sponsored employment moving in your favor. I think you’ll find that the Immigration Department will take the extenuating circumstances of your family situation into account and so long as you’ve got an employment visa sponsor in hand, you stand a really good chance of being approved for an employment visa under liberalized consideration criteria.
So, I would suggest get yourself a job offer, make an application to the department, as part of your application reveal everything that you reveal to us on your question today and I’m 99.999% confident that the Immigration Department will grant your visa as a result of your personal circumstances. All the very best.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
The question of right of abode for Foreign Domestic Helpers in Hong Kong is a wound that continues to bleed…
QUESTION
If a Philippine domestic helper has been in Hong Kong continuously for 30 years can she obtain permanent residency after marrying a foreign (British) permanent resident?
If not, can she remain in Hong Kong under any other visa category?
ANSWER
It’s now abundantly clear under the law in Hong Kong that any time spent in Hong Kong as a Foreign Domestic Helper (FDH) will not count towards ordinary residency for the purpose of a Right of Abode application. So in this instance, if you marry a foreign domestic helper as a permanent identity card holder yourself, and then you wish to live your lives in Hong Kong, then she must adjust her immigration status from foreign domestic helper through to dependent, which the Immigration Department will be happy to do.
And then after she has held a dependent visa for seven years, in her own right, she will then be able to make an application for the Right of Abode and will be able to adjust her status accordingly. So even though she’s had 30 years in Hong Kong previously as a foreign domestic helper, unfortunately, those 30 years don’t count for anything.
She’s going to have to adjust the status through to dependent after marriage, and then, after seven years of holding the dependent visa, make an application for the Rights of Abode. Okay, I hope you found that useful.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
I’m an Australian and British citizen currently living in Australia and I want to found a technology Startup company in Hong Kong because the government incentives seem very attractive to do so.
The downside is that housing is ultra-expensive in Hong Kong and paying this will deplete my resources far quicker than I’d like, effectively nullifying any government incentives and then some!
Is it possible to live over the border in Shenzhen, travel into Hong Kong everyday for work, still be employed by my Hong Kong company and take advantage of all the benefits that are bestowed on it?
I’m likely to be doing significant business with the mainland, so need an option that allows me the flexibility to cross the border often without too much impediment while staying on the right side of the law!
ANSWER
Great question and I am very grateful for you asking it. And I have to say there are a lot of moving parts and I’m not certain by the time I get to the end of this answer, you’ll be particularly enamoured with the answer. However, effectively, you have got two challenges.
Firstly, you need to be lawfully employable in your own business in Hong Kong – that’s challenge number one. And then secondly, you need to, once that’s out of the way, independently go and secure permissions to live in China. Now, I’m not an expert by any means, in China immigration, so I don’t have any value to add in respect of how you might go about gaining lawful residency in China. You’ll need to speak to a Chinese immigration practitioner in relation to that, but kicking off with your need to be lawfully employable in your own business in Hong Kong, you’ll need to do this for two really good reasons. One commercial and one legal. You absolutely need to be compliant with Hong Kong immigration law if you intend to establish a new business in Hong Kong.
And therefore you’ll have to make an application for a business investment visa, because that’s the immigration status that applies in your circumstances. And running aligned with that is your stated intention to seek to take advantage of government incentives. I don’t have any comment on how generous the incentives in the startup scene actually are, in fact; but I do believe, and understand that, if you are going to participate, or seek to participate in such schemes, there will be an expectation that you are in possession of the correct immigration status to be able to do so. So that does firmly put you in the hands of the business investment visa, which I’ve dealt with ad nauseam elsewhere on the site, so I don’t propose to go into the detail of that for your question.
So, effectively, once you have been able to pass the approvability test for an investment visa, you turn your attention to China, as I’ve said. And, once you’ve been able to turn your attention to China and you get the permissions there that you need, the third and the penultimate challenge will be the daily grind across the boundary as you commute.
It’s certainly doable and lots of people do every single day; it’s not something that I would have particularly be looking forward to, but then again, having never lived in China, there may be charms of China that make it all worthwhile, notwithstanding the daily shuttle across the border.
So, effectively, once you have secured both your investment visa for Hong Kong and also your residence permissions in China, and you’ve grasped the nettle of the the Shenzhen shuttle, as it were, the next thing that you’ll have to sort of anticipate in all of this is what happens come the time of your extension application for your first investment visa extension, which comes twelve months after the initial grant.
It’s perfectly okay to spend a lot of time in China. Of course, many, many people do, as I’ve said, they work in Hong Kong, or indeed they live in Hong Kong and work in China, and it isn’t unusual for people who are ostensibly based in Hong Kong to spend a lot of time in China.
So the Immigration Department, at the time that they extend your investment visa, they may look to see why you’ve spent so much time in China. That is, at least why you’ve spent so much time outside of Hong Kong. It may or may not present itself as an issue, but the reason why I raise it is that there are two privileges that go with an investment visa: the first privilege is to actually join in the business, and the second privilege is the privilege to reside. And you may be getting down into a bit of a rabbit hole if you say to the Immigration Department that, well, yeah, you work in Hong Kong, but you live in China; I don’t know what their response to that reality might be in terms of their ongoing willingness to grant you an extension to your investment visa, because the implication, in my experience, is that you both live and work in Hong Kong. But given that you are seeking specifically to live in China, yet work in Hong Kong, it seems to me that only 50% of the criteria for the grant of the visa are present in your case, that is, the need to join in your business in Hong Kong. And the fact that you’ve chosen to live in China is a bit of an open question for me.
So I’m not quite sure what the Immigration Department would make of it, but there you go, as I say, lots of moving parts. Great question, perfectly reasonable question. I understand, you know, your thinking behind all of this, but I hope you found these particular elements of the answer in the discrete or collective ways useful to you.
Okay, all the best.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
