Can I Set Up A Hong Kong Company, Employ My Business Partner & Sponsor An Employment Visa For Him?

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

The answer to this question is multi-part and ultimately driven by the challenges associated with a New Business Situation…

QUESTION

I am based in Hong Kong and would like your advice on visa applications for a friend.  

A friend of mine, who is based in the US and I have been discussing a business opportunity for Hong Kong and I wanted to know the best way for him to secure a working visa.

We had discussed me setting up the company and then employing him and subsequently sponsor an employment visa through the company.

Would that work?

The alternative would be for him to apply for an investment visa as he would be the brains behind the operation.

Please can you let me know which option would be best or which would be more successful?
 
Another friend of mine who set up her own recruitment agency here in Hong Kong said that as an expat setting up a company you are unable to employ someone from overseas for the first year of your business being operational.

Is that also correct?
 
Any light you could shed on this would be greatly appreciated.

ANSWER

What a lovely question with three particular moving parts that I’d like to address.

The first moving part really relates to your own immigration status; I’m going to take the view that you don’t have an immigration problem to participate in this venture one way or the other – say, for example, because you have a dependent visa, or because you have the right of abode or unconditional stay or right to land, or one of the other two types of immigration status that exist that would allow you to participate in this venture with your business partner. So I’ll assume that there are no immigration implications that, in a sense, impact on you, because if you were an employment visa holder working for a third party employer and you wanted to join in this business, there would be an immigration implication arising for you as well as for your business partner, too. But as I say, I’ll just make the assumption that you don’t have that problem in this mix.

Therefore, turning our attention to the second issue, which is what type of mechanism would be suitable for your partner to secure immigration permissions to be in Hong Kong to carry on this business with you?

Well, whether he applies for an investment visa because he’s got the overwhelming majority of the shares in the business, or whether, for example, you decide that you’re going to split the business 50-50 between the two of you, the bottom line is that the Immigration Department will be working with a new company or a new business situation – whether it’s the investment visa or whether it’s an employment visa, because you only own a smaller percentage of the shares if it’s a new business situation, and invariably it is, because in an investment visa scenario, it’s a new business per se, then the Immigration Department will apply the approvability test for the investment visa, irrespective of how you go about couching the application; all things considered, that is, in the new business situation, they’ll look to see that the enterprise can make a substantial contribution to the economy of Hong Kong, and this would involve the creation of local employment opportunities, the establishment of a proper office, and you need to ensure that you’ve got both funding resources and operational resources. That is the types of things that are normally present that are driving you to make this investment in Hong Kong in the first place.

All of these facets of the approvability stool, as I’ve couched it, absolutely need to be present, irrespective of whether he takes an employment visa because he’s only got a smaller percentage of the shares than you, or it’s an investment visa because he’s got a clear majority of the shares, all things considered.

So one way or the other it doesn’t really matter. You’re still going to have to pass the essential elements of the approvability test which I’ve dealt with elsewhere on the blog.

The third piece to this is your own friend who set up a recruitment agency who stated it was their experience that in the first year per se you’re unable to employ someone from overseas. Um, well that’s not strictly true. Effectively the Immigration Department look at the bona fides of the applicants from the perspective of them being able to show that they posses special skills, knowledge and experience of value to not readily available in Hong Kong and that no local person can be expected to do that job. But again it doesn’t matter the age of the company. If the company is properly resourced and if the three legs of the approvability stool are all in place, then it doesn’t matter the age of the proposed sponsoring entity. It just depends on how strong and well established the business is at the time that you make the application.

Okay, I hope you found useful.

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Hong Kong Right Of Abode Application – Arguing Away Missing Periods Of Residence

Posted by The Visa Geeza / in Hadley Says…, Long Stay & PR / 38 responses

This article presents solutions to missing periods of residence when it comes about a Hong Kong Right of Abode Application

The essential approvability test for a Hong Kong Right of Abode application is that you have been continuously and ordinarily resident in the HKSAR for a period of not less than 7 years AND that you have taken concrete steps towards making Hong Kong your ONLY place of permanent residence.

“Continuously”, for the purposes of the test, effectively means that any absences from Hong Kong during that time were temporary and lasted less than 6 months.

Moreover, at the time you departed it must have been your intention to be absent temporarily only – as evidenced by what you leave behind in Hong Kong to return back to at the end of your temporary sojourn abroad.

The application form ROP 145 specifically asks for details, with reasons, in respect of any absences of more than 6 months, otherwise the Hong Kong Immigration Department do not expressly raise the issue – unless it is obvious, that you have indeed spent a great deal of time continuously outside of Hong Kong during the requisite 7 years.

And the collection of documents you submit in support of your application should effectively envelope any missing periods of residence and should consist of Hong Kong tax returns, proof of accommodation, official bills, employment confirmations and, ideally, your Statement of Travel Records for the entire time you have lived in Hong Kong.

Oh, and you need to ensure that you have no outstanding taxation liabilities here as well – otherwise, your case will simply not be approved!

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Losing Hong Kong Unconditional Stay Status Due To Studies Abroad – A Family’s Dilemma

Posted by The Visa Geeza / in Long Stay & PR, Refusals & Appeals, Your Question Answered / 5 responses

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

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The Twists And Turns Of An Unusual Hong Kong Permanent Residency Application

Posted by The Visa Geeza / in Case Study, Investment Visas, Long Stay & PR / 10 responses

Although this case study is based on a situation I was asked to provide guidance to many years ago, its content is still relevant today.

 

Our client was a French national with a wife and 5 year old daughter – all of them, French citizens.

He had first arrived in Hong Kong in 2004 as a student to undertake an MBA programme at the University of Hong Kong.

Upon graduation in 2006, he joined a European investment bank where he worked continuously until 2010 when he was made redundant as part of the banking challenges associated with the GFC.

At the time he instructed us, he had an employment visa sponsored by his ex-employing investment bank with a 2 year period of stay endorsed inside his passport, taking him up just short of the complete 7 year time frame for the purposes of an application for the Right of Abode.

In 2010, with the chances of him gaining further employment in the investment banking game unlikely in the near term, our client decided to start a French wine importing business – but did not apply for an adjustment in his immigration status to allow him to be able to do this. He really needed an investment visa but had never bothered to get one.

As the period of stay availed by the investment bank expired 6 weeks before he would have been continuously resident for the 7 years needed for a Right of Abode application, he decided that he would take him family out of Hong Kong at the time his employment visa expired and bring them all back in as visitors, gaining a 90 day period of stay when they entered, waited six weeks, then submitted an application for the Right of Abode.

This was in 2011, 2 weeks before he asked for our help.

At the time of his application, he didn’t realise that you can’t apply for the Right of Abode if you have a visitor visa.

You need to be ‘resident’ at the time you apply. Instead he and his family were ‘visiting’.

The Hong Kong Immigration Department knocked back his application for permanent residency on this ground and so he found his way to us.

The key issues in this application were:

1 – the fact of his visitor visa status at the time he applied for the Right of Abode.

2 – the 11 months he had been working his French wine import business, unapproved by the Hong Kong Immigration authorities.

3 – as a prior student from HKU he could take advantage as a ‘returning graduate‘ and be afforded ‘positive consideration’ for any application that he might make in order to take up a new job in Hong Kong (for which he’d need an offer of employment from a suitably qualified sponsor).

Coincidentally, just after our client approached us for advice, an ex-colleague of his from the investment bank where he had worked for four years previously, asked him to come and consult on an energy project in the Philippines.

This ex-colleague had, three years prior, provided consulting services through his own, newly established one-man company and had turned over HKD10 million in consulting fees in the first 18 months. However, the project had come to a temporary halt, as these things often do, as certain government approvals processes played themselves out.

The project has been in a temporary hiatus but had, just recently, been reactivated in light of the Philippines government providing whatever consents had been necessary for it to progress to the next phase.

Consequently, and somewhat out of the blue, our client received an offer of employment from his ex-colleague for him to assist him in the next phase of the energy project.

This was good news on the one hand, but on the other, the employing business was still very much a ‘brass plaque’ consulting concern which had been effectively dormant for the last 18 months.

On the plus side, it had a strong balance sheet and also had a receipt from the Hong Kong Inland Revenue for more than HKD1 million it had paid in profits tax the year before. It also had a formal notification from its sole client that the energy project was now recommencing and thus was manifestly ready to re-engage in providing services once more.

We advised our client that this could be a heaven sent opportunity for us to secure an employment visa for him (with dependent visas for his wife and daughter) relying on the relaxed application consideration criteria which the Hong Kong Immigration Department afford to non local graduates of Hong Kong Universities.

We did, on the other hand, counsel that as the sponsoring employer was pretty much still a shell of an operation, there would be some tussling with the Immigration Department to persuade them of its bona fides as a quality employment visa sponsor.

As expected, we locked horns with the Department about the quality of the sponsor and had several exchanges with them each time providing them with more information, proof of the good prospects for the business and the critical role our client was going to be playing in its operations.

Finally, we suggested to the HKID that they approve our client’s employment visa subject to Business Review at the end of 12 months, a not unusual proposition, but suitable in the circumstances. The Hong Kong Immigration Department agreed and our client and his family’s applications were duly approved subject to this condition.

As the strategy all along had been to provide our client with a residence visa for the purposes of his Right of Abode application, the fact of this Business Review was ultimately unimportant because it would only come into play if our client applied for an extension to his new employment visa 12 months down the road.

In fact, two months after this, their Right of Abode applications were approved and so Business Review was never an issue. The really good news is that this client is now providing consulting services to the energy project AND running his French wine importing business quite lawfully as a permanent resident.

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Posted by The Visa Geeza / in Employment Visas, Hadley Says… / 5 responses

No way, for sure not  – it simply is not the way the process works…

Your Hong Kong employment visa belongs to you, not your employer. They are just responsible for the sponsorship.

If the relationship with your employer sours for any reason and your employment terminates this is what happens to your visa:

– Your privilege to work ceases. You can no longer engage in any employment without making a new application to the HKID first.

– Your privilege to reside continues. The HKID will ordinarily allow you to remain in Hong Kong until your current limit of stay expires, whereupon you are required to leave Hong Kong.

In the meantime, this usually affords you the time you need to take stock of your affairs and get yourself back in the driving seat en route to a new employment in Hong Kong.

The HKID do not engage in any blame games as to why a sponsored employment has come to an end and only look forward not backwards

So don’t be intimidated by an errant employer who believes they have some kind of leverage over you as the sponsor of your employment visa.

The reality is, they have no such leverage whatsoever and you are a free agent for visa purposes and have nothing to worry about in this regard.

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Am I Compelled To Apply For Hong Kong Permanent Residency After 7 Years Or Can I Maintain The Status Quo Of My Present Employment Visa?

Posted by The Visa Geeza / in Employment Visas, Long Stay & PR, Your Question Answered / 3 responses

Once you have achieved 7 years continuous ordinary residence in Hong Kong, your long stay immigration options open up considerably…

QUESTION

My current working visa is due to expire at the end of  September, (previously I was given an extension of 3 years in 2010), this I assume was so that I would be valid for Hong Kong Permanent Residency, (as I have been here for over 7 years now).

My question is should I seek Hong Kong Permanent Residency and/or can I just continue to add an extension to my working visa if I don’t want Hong Kong Permanent Residency?

 In addition, for either of these cases, do I have to always change/add my wife’s and 2 children’s passports visa extension to reflect these changes, (my wife would have been here for 6 years and my kids were born here in 2008 and 2011 (do they also become PR’s on the back of me?)

ANSWER

This is a great question and slightly unusual inasmuch as the vast majority of foreign nationals who spend their time in Hong Kong see the Right of Abode and Permanent Residency as a sort of the ultimate end goal. But you do raise some fascinating topics and I’m really pleased to have the opportunity to address them for you.

The bottom line is that no, you absolutely do not have to apply for Permanent Residency. Once you’ve gotten across the seven-year hurdle, by no means at all are you forced to do that or indeed anything. If you wish to maintain your current employment visa on an ongoing basis, then you just go through the process of extending your employment visa in September of this year, using the normal processes – you could use our visa extension kit to this end to do that, and you’d expect the immigration department would more than likely give you a three-year period of stay.

Given that you are eligible for the Right of Abode, you are certainly not compelled. I mean, a key thing about the ride of abode is that you need to put your hand on your heart and make a declaration that you’re taking Hong Kong as your only place of permanent residence. So if you can’t genuinely do that for good – reason the question is begged as to what happens come September, do you in fact need to extend your current employment visa, which at all times will require the support of your current employer? You do, in fact have another option, and that is to apply for Unconditional Stay.

This effectively is very much a similar test to the Right of Abode where you have to show that you’ve been continuously an ordinarily resident in Hong Kong for a period of not less than seven years. On the basis you pass that approvability test, then the immigration department will avail you of a status called Unconditional Stay, which means, effectively you can stay here unconditionally, and you don’t require the consent of your existing employer.

In respect of extending an employment visa, you remove all conditions to your current limit of stay including a limit of time, and then they will endorse your passport to say that effectively you’ve got Unconditional Stay and that you can live here unconditionally. The only condition associated to your Unconditional Stay is that you need to be present physically in Hong Kong on at least one occasion in any twelve month given period.

So, effectively with Unconditional Stay you can come and go, you can work for anybody, you can join in the business, you can engage in any lawful activity just so long as you do it in Hong Kong on the basis of you having been here for on at least one occasion in any twelve month given period.

Thus, for that status of Unconditional Stay which is just an administrative convenience on the part of the Immigration Department rather than a right (as it would be under the Right of Abode), there’s no requirement for you to make any declarations as to having taken Hong Kong as your only place of permanent residence. So you may find that useful.

In terms of your family members, the reality is that every single one of your family members, both your two children and your wife are going to have to qualify for the Right of Abode by themselves inasmuch as they will have to get to seven years continuous ordinary residence and they will then have to make applications to the effect that they’ve taken Hong Kong as their only place of permanent residence and go on to secure the Right of Abode.

Similarly after seven years, you can make applications for them to have Unconditional Stay status so that it would accord with yours, on the basis that your family members do continue to remain in Hong Kong with you whilst or after you’ve adjusted your immigration status potentially to Unconditional Stay or the Right of Abode, they’re going to have to continue their current dependent visa status through to such a time that they qualify for either unconditional stay or ride of abode in their own right. Nothing will happen automatically just because you’ve changed your own immigration status. They have to earn it independently of you as. So they would get extensions to their dependent visas until such a time as they be able to make an application for either as I say, unconditional stay or the right of abode in their own right subsequently. Okay, I hope you found that useful. Bye.

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How Can You Extend Your Hong Kong Work Visa if Your Passport Is About to Expire?

Posted by The Visa Geeza / in Employment Visas, Musing / 5 responses

How can you extend your Hong Kong work visa if your passport  has only a very limited amount of time remaining on it before it expires?

QUESTION

Hello,

My passport is currently being renewed but my Hong Kong work visa runs out very soon. 

However I cannot start the visa extension application process without a new passport.  

I am worried my visa will expire before the application is complete. 

Does immigration allow special extensions for such circumstances?

ANSWER

This situation would occur a lot more frequently than you might imagine and the Immigration Department have a very straightforward way of dealing with it; essentially, what you do is that you start your extension application with your old passport details – the application should be submitted within 30 days of the expiry of your current Hong Kong employment visa limit of stay, and at the same time, you submit proof of your new passport application to the Immigration Department as part of that extension exercise.

This inputs the Immigration Department that there is a new travel document in process and they will wait until the issue of your new passport in order to finalise your new extension that will go into your new passport.

I hope you find this useful!

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