Can You Remain In Hong Kong Under An Employment Visa Sponsored By An Ex-Employer & Run A Hong Kong Sole Proprietorship Providing Services Outside Of Hong Kong (Mostly)?

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

Remain in Hong Kong under an Employment Visa sponsored by an ex-Employer? Unusual set of facts in this case and a question never posed to me in this fashion previously…

QUESTION

I have been in Hong Kong since 2011 under an employment visa but have recently quit my job.

The last time my visa was renewed it was extended until November 2018 and I understand I still have the privilege to reside in Hong Kong until then even if my employment has ended.

I now have a consultancy agreement with a firm based in Singapore for which I provide services independently.

The fieldwork (which represents 80% of the work) takes place outside of Hong Kong, I only write up my reports from home in Hong Kong.

I have registered a sole proprietorship business to report the consultancy income for tax purposes.

However, I guess I am not supposed to work under the current conditions of my stay.

My questions are:

(1) Could the fact of reporting that income to the tax authorities actually trigger some issues on the immigration side?

(2) If I was to apply for a business investment visa as an entrepreneur and it was rejected, could that trigger the Immigration Department to cancel my current permission of stay until November 2018?

What is in your opinion the best thing to do?

ANSWER

The employment visa that you have presently has been granted to you on the strength that you are permitted to work in Hong Kong for your nominated employer and your nominated employer alone. As you’ve correctly understood, even though you have a valid limit of stay that stretches all the way through to 2018, you’re privileged to work for anybody in Hong Kong other than yourself.

Given that you have established a business – which you’ve done through the establishment of your sole proprietorship, essentially you’ve breached your conditions of stay at that point, and given that you’re spending 80% of your time on field work outside of Hong Kong, engaging in employment activities outside of Hong Kong doesn’t mitigate the fact that you will spend the 20% of the remainder of your time in Hong Kong actually undertaking employment activities for your own sole proprietorship business.

So, clearly, in the circumstances that you find yourself right now, you are breaching your conditions of stay as a result of you not merely residing in Hong Kong but having established a business here. So, clearly you’ve got to think about bringing your circumstances into compliance as soon as you possibly can.

Additionally, the fact that you have established a sole proprietorship certainly could alert the Immigration Department to the fact of you having established that business, as the Immigration Department and Inland Revenue Department are able to exchange information if they so wish;  whether that’s an automatic exchange of information or whether it’s done on specific query or not is question that remains open being part of the Security Bureau; clearly I don’t have privileged access to how those government departments work but, nevertheless, my best advice to you is to make an application to adjust your status from sponsored employment through to business investment in your own right. I won’t go into the details of how you go about satisfying the approvability test for that business investment visa, because I’ve dealt with that quite extensively elsewhere on the site.

In terms of the Immigration Department potentially refusing any such business investment visa application as an entrepreneur and then yanking, as it were, the rug from under your feet and then giving you a shorter limit of stay, I suspect that that’s probably not going to happen to you; it doesn’t appear to be the Immigration Department standard practice in those circumstances. If they say no to business investment, it means that they are not satisfied that you can make a substantial contribution to the economy of Hong Kong on the basis of your business plan and the other information that you have put forward. So, if you do get denied, you do have an opportunity to have another go at it on the basis of a reconsideration, and if you get it right the second time, then you are on your way.

So, just to wrap it all up – yes, you are not permitted to actually engage in the activities that you’ve presently configured yourself for, given that you’ve left your employment of your previous sponsor.

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Must The Employing Company Sponsor Of My Hong Kong Work Visa Application Be Profitable?

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

How important is sponsor-profitability, especially for start up businesses less than 12 months old?

QUESTION

I have been recruited by a newly established company (12 months old as of this week).

They have never hired a foreigner and have tasked me with completing the visa forms, both employee and employer versions.

The Employer-side application requires “proof of financial standing.”

Although registered one year ago, the company has only recently begun making sales, which do not amount to much.

Will the companies lack of profit negatively affect my chances at being approved under this Hong Kong work visa application?

If so, is there anything that can be done to mitigate this?

Thank you in advance for your reply.

ANSWER

Whenever the Immigration Department are asked to ascribe a suitable and credible sponsorship status to a newly established enterprise, the Immigration Department will look at a number of different factors when taking into account a good financial standing of the business. As a newly established company with no history of trading, that will not come as a surprise to the Immigration Department if only just turning revenue now, that’s okay.

They’ll look to see for a set of management accounts – I appreciate you won’t have an audited management account at this point, but certainly up-to-date management accounts that shows the balance sheet and the profit and loss so that the Immigration Department can see what’s going on now, that will be beneficial to the application.

The fact that there are no revenues, as you say, then what does the bank balance look like, and what the extent of the funding available to be used for the business. As long as all of that stacks up, it will not stand in the way of you getting your approval because you’ll satisfy the financial bona fides accordingly.

I hope you found that useful.

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How Does Pre-Existing Business Ownership Impact On A Hong Kong Prolonged Visitor Visa Application?

Posted by The Visa Geeza / in Family Visas, Visitor Visas, Your Question Answered / 4 responses

Will what has been done before impact on a Hong Kong Prolonged Visitor Visa out of policy application now?

QUESTION

I have a general question regarding conditions of stay for a Hong Kong prolonged visitor visa.

On the Hong Kong Immigration website it says:

“Subject to the following conditions of stay:

(a) he shall not take any employment, whether paid or unpaid:

(b) he shall not establish or join in any business; and

(c) he shall not become a student at a school, university or other education institution. “

Does being owner of a business fall into one of these categories ? 

Considering that  the company was incorporated in Hong Kong by other persons a few years ago, and bought before applying for such visa ?

ANSWER

Really good question, and I’m grateful for you having raised it in the way that you have.

Given that your acquisition of this business interest occurred at a time when you were not in breach of your conditions of stay, assuming that, at all times, this business was acquired when you were not in Hong Kong, and therefore the issue of your immigration status at the time that you acquired the business doesn’t come into play.

The principal issue at play in this regard, then, is what will the Immigration Department make of the fact that you have an interest in the business at the point of you being granted a prolonged visitor visa? Because if you’re involved in the business operationally and intend to be involved in the business operationally while you’re in possession of a prolonged visitor visa, that will certainly be a breach of your conditions of stay upon the grant of a prolonged visitor visa, assuming, of course, that the Immigration Department give you one because it is an out of policy act of discretion to grant such a visa in the first place.

So, effectively, assuming that you’re going to disclose what your interests are, what your financial circumstances are as part of your prolonged visa application, then your interest in this business in Hong Kong will be disclosed to the Immigration Department and you’ll have to make certain representations in relation to it.

The Immigration Department will be concerned that if you’re going to play an operational role in the business, as I say, as a prolonged visitor, you’ll be breaching your conditions of stay. So you’ll need to tread very carefully in how you articulate your argument to the Immigration Department, so that they can be satisfied that if they do effect a positive act of discretion in your favour and they do grant you a prolonged visitor visa, they have no concerns about you breaching those conditions by then, immediately, in a sense, walking across town and then taking care of the business, as it were, a business, in this instance, that you acquired before your question of immigration status ever came into play.

So I don’t think you’ve got any issues at all to be concerned about in respect to how you acquired your business interest, prior to making this application for a prolonged visa visa. But it’s certainly in your best interest to disclose the fact of your interest in that business to the Immigration Department so that they can then take it into consideration when determining if they should make that out of policy determination to grant you the prolonged visitor visa that you’re looking for.

Okay. I hope you found this useful.

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Hong Kong Unconditional Stay – A Practical Guide (Business Immigration To Hong Kong)

Posted by The Visa Geeza / in Long Stay & PR, Musing, Resource / No responses

In this post, I talk about  the Hong Kong unconditional stay and when it might be useful to you.

Hong Kong unconditional stay plays a lesser yet still important role in immigration status to acquire in the HKSAR today…

On March 21, 2014 I gave a presentation at the Chinese Club entitled Business Immigration to Hong Kong – A Practical Guide. The information stays relevant today.

The unconditional stay covers the instances where a long-stay foreign national resident is in a position to make an application for the Right of Abode but they genuinely cannot put their hand on their heart and say that they’ve taken Hong Kong as their only place of Permanent Residence and, in that instance, because of the fact that one of the application forms the ROP146 calls for that declaration, if you can’t make that declaration you can’t get the Right of Abode; however, what you can do instead of getting the Right of Abode is making an application for unconditional stay and essentially it’s the same test for approval – seven years continuous ordinary residence in Hong Kong, and if you can satisfy that test but you can’t make the Declaration then you can have your stays adjusted to unconditional stay.

The unconditional stay relieves you of all the limits to your existing residence in Hong Kong so there’s no imposition on the limit of stay and what you can do whilst you hold unconditional stay, so this is a really useful immigration status.

Before a case that was settled at the end of the 90s, the unconditional stay application was a pre-requisite for obtaining the Right of Abode, but the Supreme Court said this is not constitutional because you’re allowing the director of immigration the ability to roadblock somebody’s potential to want to get the Right of Abode; so now there’s no requirement to get unconditional stay first, you can go directly to the Right of Abode the test for approval is exactly the same as for the unconditional stay.

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I Lived In Hong Kong For 11 Years – And Have Been Gone For The Last 7 – Can I Still Get Permanent Residency?

Posted by The Visa Geeza / in Long Stay & PR, Your Question Answered / 2 responses

It happens a lot more often that you might imagine. You’d think that the many early years in Hong Kong ought to count towards your right of abode but all too often disappointment is in the offing…

QUESTION

Thank you very much for this informative website! I hope you’ll be able to answer my question, I’m not sure if its a common scenario or not.

I was born in Singapore and I lived in Hong Kong from 1994 – 2005 (11 years) and moved when I was nearly 11 because of my father’s job, and it has now been 7 years since I left to go and live in Thailand.

My mother has a Hong Kong Permanent Identity Card (and was working for an airline there) but I do not. I had a dependant visa endorsed in my passport at the time I left with my parents.

This usually wouldn’t be a problem after leaving Hong Kong, however there are two education sponsorship programmes that I would like to apply for in Hong Kong which requires you to have a permanent HKID.

I have gone to the immigration office about three times in the past 7 years as we do go back quite often, and every time we ask an officer, he says “if you are living in Hong Kong, you can apply for permanent residency.”

Is this true?

Seeing as I have already clocked up 11 years in Hong Kong, all I am missing in the application form is the current residency card.

Does this mean that if I go to university in Hong Kong starting August this year, that I could get my residency card, and then with that, apply for my permanent residency?

The way I see it, although I have been away for a considerably long time, but I am coming back, so this would technically be my 11th year total living in Hong Kong (and I have proof of having been there for 7 years ‘ordinarily’ with my school records, etc.)

I hope my question was clear enough and thank you very much in advance!

ANSWER

This is a very interesting question, and it does strike a chord with quite a number of people in Hong Kong who find themselves in your situation. So I’m grateful to you for having raised the question and hopefully I can shed some light on the situation and how your present immigration status in Hong Kong is affected by your life circumstances.

Your mother is a permanent Hong Kong identity card holder and on the basis that you had been born in Hong Kong and your mother had been a permanent identity card holder at that time, then at the point of your birth, your eligibility for a permanent identity card would have been established and effectively in the wake of that there could have been a very good opportunity for you to continue to argue now, many years later that you are a permanent resident of Hong Kong.

However, that’s theoretical and hypothetical in this situation because you weren’t born in Hong Kong, you were born in Singapore; so consequently your eligibility for a permanent identity card wasn’t established at the time of your birthday. And consequently it meant that the immigration status that was available to you when you came back to Hong Kong with your mother was that of a dependent visa.

And as you stated in your question, you held the dependent visa all the way through to the age of eleven, and then effectively, you left Hong Kong. Now the interesting thing is that after you had been in Hong Kong as a dependent visa holder, just after your 7th, possibly your 8th birthday, you could have, or your parents could have, made an application to have your eligibility for a permanent identity card verified, at the age of eight years of age, on the strength that you had been ordinarily resident in Hong Kong with your parents for a minimum of seven, and at that point you would have effectively been in the driving seat for a permanent identity card.

Subsequently, once you got to the age of eleven years, when the identity card is issued to you, and had that been, if that had occurred, in fact, then effectively at the age of eleven, you would have had your identity card issued to you possibly before you left Hong Kong.

And then on the basis that you have been back in Hong Kong on at least one occasion every three years thereafter, your permanent identity card status, your Right of Abode, in fact, would have been maintained. And uh, uh, effectively the question that, uh, uh, you’re asking today would have been answered in the affirmative.

However, unfortunately, because you only held a dependent visa for the first eleven years of your life in Hong Kong, at the time that you left with your parents to go off to Thailand, effectively you abandoned your continuous ordinary residence at that time; and what that means is that when you come back to Hong Kong in the future, you’re going to have to get a student visa.

The first eleven years of your life in Hong Kong effectively would have been lost. So, it’s unfortunate. It’s certainly not going to assist you with the sponsorship programmes that you’re lining up to make an application for. But if it is any kind of consolation, effectively what will happen in terms of your life going forward is you’ll come back to Hong Kong as a student.

One would assume that you’ll spend three years here as a student, you’ll graduate,you’ll be able to join the workforce straight away, if you start working for a Hong Kong employer within six months of you having graduated from university, because the Immigration Arrangements for Non-Local Graduates give you those privileges.

So that’s effectively going to take you to three and a half years. One assumes that a three to a four year working career in Hong Kong will have seen you continuously know an old resident in Hong Kong again for the requisite seven years and then you’ll be able to go on to secure the Right of Abode as an adult in your own right.

But unfortunately, in light of the facts that we’ve got in your question at the moment,  you’re not going to be able to secure the Right of Abode at this point in time.

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Long Term Business Visit To Hong Kong – Do I Need An Employment Visa?

Posted by The Visa Geeza / in Employment Visas, Visitor Visas, Your Question Answered / 2 responses

Business visit to Hong Kong? With Hong Kong having such a liberal visa-upon-arrival regime (with more than 160 nationalities being granted permission to visit for between 7 and 180 days – depending on which passport you carry), it is understandable that there is confusion as to what is permitted activity if you are a ‘business visitor’ in the HKSAR.

This question provides an opportunity to get to the heart of this issue once and for all.

QUESTION

“Hi, Your websites are really informative. Thanks for making all this information available for free. I do have one question which I would like to have an answer for though.

I co-own and manage a small company in the UK (6 staff altogether) and we do a lot of business with one company in Hong Kong especially. Due to a contract we have just signed, I need to transfer myself to HK for up to one year in total, although I will probably travel to and from the UK several times in that period. I am trying to understand if I need to get an employment visa for Hong Kong. My business will carry on as normal in the UK (my brother and I run it together) but for all practical purposes I will be based out of Hong Kong for those 12 months.

Any advice you can offer would be really appreciated. Thank you!”

ANSWER

If you come to Hong Kong as a business visitor, the question is begged as to what is permitted activity under that immigration status. And typically business visitors must generally contain their activities to for example, attending business meetings or fact-finding discussions or this type of activity that gets to the heart of the possibility of some kind of transaction, with your counterparties in Hong Kong.

You can come for example to make sales calls to potential business partners clients, as long as whilst you’re making those sales calls you’re working for an entity that’s established outside of Hong Kong. You can come to sign contracts or conclude contracts indeed, submit formal tender proposals, and support the submission exercise through the delivery of presentations and supporting representations; you can participate in overall product orientation, you can attend short term seminars, you can oversee the installation or the packaging of goods, but you can’t actually be responsible that is, go hands on in relation to the installation or the packaging of those goods.

Likewise, it’s permitted activity to participate in exhibitions or trade fairs although it is not permitted activity to roll your sleeves up and start, for example, building the booth within the trade fair. You could assemble from a kit that you brought with you. That’s natural. But if you had to order timber locally and you needed to interact with local contractors and take responsibility for the formal building of your stand, you would need work authorisations for that. Ah, and it’s perfectly okay to come and participate in for example, litigation if you’re going to suing somebody or you’re being sued and you need to give evidence.

So in all things considered, business visits allow you to do all the kind of activities that are peripheral to commercial activity and where it can be said that you’re actually getting involved in the provision of services or your implementing activities in relation to the commercial endeavour that brought you into Hong Kong in the first place.

You’re going to need an employment visa, and this really sort of translates itself into a sort of common sense understanding, if you’re going to come for or four months at a time and you are a UK citizen and you get 180 days as a visitor, and during those three or four months you’re living in some service department and at 09:00 in the morning you’re reporting to your counterparty’s office and you’ve got a dedicated desk and you’re sitting there and you’re on the telephone and you’re preparing paperwork and you’re doing the kind of activities that actually go towards the implementation of the commercial aspect of what brought you to Hong Kong in the first place. That’s really work.

If it walks like a duck and it talks like a duck, in actual fact it’s quacking its head off, you are in fact a duck, therefore you need to have an employment visa. So, whilst there are some differences between the activities which are permitted by regulation and those that are allowed in practise, if you are going to be discharging your employment duties in Hong Kong, the type of things that you would ordinarily be doing back in the UK, albeit it’s more practical for you to be in Hong Kong on the ground doing that stuff, you need to have an employment visa.

Therefore my advice in this situation would be to not rely on the business visit category. Even though you’re going to get 180 day period of state each time you present yourself at the border, make an application for an employment visa. The Immigration Department will take into consideration all the circumstances of your case and if you’ve got a genuine contract and you’ve got a business back home that is going to continue and in fact is supporting the activities that have brought you to Hong Kong in the first place, the Immigration Department will undoubtedly grant you the employment visa.

So, make that application and don’t be tempted just to rely on the business visit category simply because practically you get it underneath a day each time you present yourself in Hong Kong at the border.

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Training, Employment Or Working Holiday – What’s The Best Hong Kong Visa Option For A Recently Graduated British National?

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

What’s the Best Hong Kong Visa Option for a Recently Graduated British National?

 

QUESTION

Hi Stephen,

From  May through November 2013 I was employed in a well known and large company in Hong Kong under the training visa for a period of 6 months.

During the end of this tenure the company decided to offer me a permanent position however I had to apply for this job under the employment visa.

Unfortunately this was rejected, as the Immigration Department feel this is a job that can be taken up locally.

I’m 23 years old with one years work experience after graduating from university but really want to stay in Hong Kong now I have embedded myself within the team I was working in and learning all the appropriate skills and practices for the role I was undertaking.

I have now become a highly valued member of my working team.

I want to ask whether already having a training visa then having a working visa rejected would affect my chances of  getting a working holiday visa?

I also have the option to move to Dubai where I have been granted a visa which can be used as a stop gap to get more experience then look to re-apply in Hong Kong.

But as my primary desire is to stay in Hong Kong can I use the working holiday visa as an additional years experience until the time comes that I need to re-apply for a working visa next year?

And how should I re-apply for that differently?

Can you kindly advise what is the best course of action?

Thanks

ANSWER

In the vast majority of circumstances, whenever you have been able to secure a training visa, usually for six months, sometimes for a maximum of twelve months, depending on the nature of the training that you’re due to receive, it is almost impossible to swap from a training visa through to an employment visa because the issue of the training visa was done on the basis that you would acquire the training and then you would leave.

So it’s natural in many instances where you have undergone that period of training, you’ve inculcated yourself into the working fabric of your team there and clearly your manager at the end of the training, doesn’t want to lose you, recognises your talent, wants you to remain in Hong Kong to work full time, and so you make an application for an employment visa.

Now, two challenges associated with that stated is that as part of your training visa application, there is an undertaking that you will leave Hong Kong at the end of the period of training. And the second challenge is that, to actually convert to an employment visa, you have to pass the employment visa provability test, which is you need to show you possess special skills, knowledge and experience of value to and not readily available in Hong Kong.

And normally this requires, at a very minimum, for you to be a university graduate with two years post graduation working experience in a supervisor in a managerial capacity. And normally if you’re in a training visa situation, by implication you’re not managing anybody or supervising anybody. Quite the contrary, you’re on the receiving end of such management and such supervision.

So when you do make that application to a justice status from training visa to employment visa, uh, in your circumstances, it’s quite, uh, normal to expect that you will be, um, refused in that application. So now the question is begged as to how can you continue to remain in Hong Kong so that you can do the things that you’re doing now.

Fortunately, because of the introduction of british nationals to the list of, uh, qualifying nationals under the working holiday scheme, as of December 2013, you can apply for a working holiday visa which will give you a twelve month limit of staying, uh, and you’ll be able to work for any single employer for twelve months.

So the fact that you’ve had a prior employment visa refused and the fact that you’ve previously held a training visa should not, in normal circumstances, preclude you from accessing the working holiday visa on the basis that you do qualify for the working holiday visa in your own right, which is that you’re under 30 years of age, you’ve got about HKD20,000 in your bank account and you’ve got the necessary medical insurance to cover your staying as a working visa holder in Hong Kong.

And that there’s still a quota available to you. That is that a lot of other British nationals haven’t gotten ahead of you and stolen your opportunity to acquire one of those visas because of the number that are issued each year. So have no fear that you can’t get a working holiday visa so long as there’s quota available and you can meet the conditions.

And then once you’ve got your working holiday visa, you can certainly rejoin your working team, and away you go, so that will then take you twelve months down the road. And then the issue is, well, how do you then get from a working holiday visa through to an employment visa again. And will, in all the circumstances, the time that you spent in Hong Kong as a training visa holder and the twelve months that you had as a working holiday visa holder, will all of that again qualify you, ostensibly for the minimum two years post graduation working experience in managerial or supervisory capacity. That’s a question that can really only be answered at the time that you make your next application, depending on effectively what’s gone on in, in all the time that you were holding the working holiday visa. And frankly, whether or not even one year hence, you’ll be able to argue to the Immigration Department that your skills can’t be found locally, because it may well be that the work that you do there could clearly be a ready pool of local employees, potential local employees, new graduates from university or others that have the necessary skills in the industry that you’re working in department might not be persuaded in any event, that given the nature of the work that you do, that work can’t be uptaken by somebody from within the local workforce.

So that’s always a risk and it’s not something that I can give you any concrete advice upon at this stage in the game. All that I can suggest is that once your working holiday visa expires, go back to the immigration department with a new application for an employment visa and argue your case stridently and forthrightly and see what they make of it as another option.

Given that you do seem to have the ability to go off, in this instance to Dubai, to what I assume is a group company to work there, if all else fails, you could  secure employment in Dubai and go spend maybe a year or two in Dubai working for that group company, building up your knowledge, building up your experience, ensure that experience is gained in managing and supervising others and then at the end of that period, you make an application again to transfer back to Hong Kong from that Dubai Group company on an intercompany transferee basis.

And nine times out of ten, if it is a straightforward intercompany transferee application for an employment visa where you clearly now have the necessary post graduation working experience and that given the nature of the work that you’ve been doing for the group company in Dubai, it’s clear that a local person can’t be expected to uptake that work, then you stand an improved chance of approval next time around on the basis that you have been an intercompany transferee.

So all of this sounds really quite long and convoluted and complex, but, strategically, you do have a pathway to your ultimate end game, which is to be working full time, lawfully, for your proposed employer in Hong Kong, doing the work that you clearly love to do; but, you’ve still got a few sort of months ahead of you and a few applications ahead of you before,  you get the security and comfort of knowing that finally, the Immigration Department deem you professional for the purpose of the general employment policy.

And you’ve created the circumstances where you can definitively argue that the work that you’re going to be doing in Hong Kong can’t be taken up by somebody locally. Okay, I hope you found that useful.

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