Hong Kong Visas Made Easy

How Can An Overseas Company Temporarily Sponsor Hong Kong Employment Visa Permissions?

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

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.

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How Are Fiances Prior To Marriage Treated By The Hong Kong Immigration Department?

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

The issue of fiances prior to marriage and how the Hong Kong Immigration Department treat them is often confused so I was happy to receive this question recently.

So, how are fiance’s prior to marriage treated by the Hong Kong Immigration Department?

QUESTION

My fiancé is a Philippine resident working in Hong Kong for the past 4 years. She met with a divorce lawyer and is filing for divorce from her Philippine husband.  Will be uncontested.  The lawyer from Hong Kong said the divorce will proceed faster if we show the court we filed for a fiancé visa and showed that to the court.  Can we file for fiancé visa during the divorce process?   I am an American citizen, spent a week there earlier in the year.  I qualify on my end. 

ANSWER

Unlike countries such as Australia, Canada, America and New Zealand, Hong Kong doesn’t have a formal fiance visa as such. That is an immigration status that’s designed specifically to allow a couple who are engaged to be married in Hong Kong and who need to have some time together in Hong Kong prior to the completion of the legal formalities, which results consequently in a dependent visa upon application; in such instances the Immigration Department will receive an application from the non-resident partner on the basis of an extension to her or his visitor visa pending the completion of the nuptials.

So, effectively this is an out of pocket positive act of discretion on part of the Immigration Department to allow the couple to remain together until the formalisation of the marriage occurs through the complete ceremony. And usually the Immigration Department don’t afford any longer than a three-month period of stay as an absolute maximum to accommodate  such fiance type scenarios.

So whilst I can understand what your divorce lawyer is attempting to accomplish, unfortunately there isn’t a formal fiance visa as such that’s going to help you strategically move your fiance’s divorce from her previous partner along, unfortunately. So, yeah, that’s how fiance visas are dealt with in Hong Kong.

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What Chance Is There That ImmD Will Grant A Visa To A Foreign National Who Previously Overstayed In Hong Kong By Five-And-A-Half Years?

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

Overstayed in Hong Kong for a very long time previously…?

Great question this, not so much because the answer is mostly quite obvious, but because it gives me a chance to have a discussion about overstaying generally.

QUESTION

I was looking for a male helper and found a suitable one for our family.

However, he overstayed in Hong Kong and surrendered to the Immigration Department and has now gone back to his country. He overstayed for almost 5 and half years,

He has all the qualifications we are looking for.

My question is: will Hong Kong immigration let him come back if we apply domestic helper visa for him ?

Or we are just wasting our time by applying for a visa for him?

Thanks a lot.

ANSWER

Yes, you have kind of concluded for yourself towards the end of your question the likelihood of the Immigration Department granting any kind of immigration status to a foreign national who previously overstayed by five and a half years is just not going to happen.

There are a number of implications for people who overstay, but the most important one to consider from a long term visa perspective is the fact that you have a negative prior record and the Immigration Department naturally enough don’t articulate too widely what exactly negative prior record constitutes or how you can go about attaining one.

But there are a number of different things that in my experience tend to work against you in relation to future possibilities for immigration status in Hong Kong, and certainly overstaying is one of them. Certainly overstaying by five and a half years is really sending a message to the Immigration Department that this particular individual, for his or own reasons has made a decision that is going to blatantly break basically every facet of Hong Kong law by virtue of the fact that it is an overstayer.

Not only are we talking about these activities just by being physically in Hong Kong, being a contravention of Hong Kong immigration law, he would not have been sitting idly by for five and a half years; during that time he of course would have been working, and whilst he has been working he would have been working unlawfully, he would arguably not have been part of the tax loop,  so he would have been breaking revenue law, and ostensibly there is every possibility that he could have been breaking other laws whilst he was outside of his conditions of stay as a previous either resident or as a visitor or whatever his status was at the time that he first went into an overstay situation.

So the bottom line is that your immigration status in Hong Kong is absolutely sacrosanct. And of course people do make mistakes and sometimes they find themselves a day or two out of status. And the Immigration Department see that for what it is, you know, normal, typical human foibles, and they don’t penalise too heavily. They prefer to just deal with the process of regularising those slight technical overstays, and that puts an end to the matter very quickly. But in the instance where it’s manifestly obvious that a person has made the determination that they are going to stay in Hong Kong unlawfully going to slip under the radar screen, and until such a time as they are either apprehended or until they as in this instance surrender themselves, they have effectively made a determination every single day to break the law; and that obviously goes without saying that irrespective of how the punishment is dealt with via the court subsequently, that is an indication to the Immigration Department of what the particular person’s attitude is towards immigration law that represents a negative prior record as far as they’re concerned, and so there’s no chance that he’ll ever be admitted back into Hong Kong again, even if for example he presents himself at the border as a visitor maybe ten years from now, potentially just to come on holiday for a week or so as a package to, he’s going to run the risk of being refused entry even in those circumstances.

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Strategy On How To Craft An Argument To Appeal A Refused Hong Kong Right Of Abode Application

Posted by The Visa Geeza / in Long Stay & PR, Refusals & Appeals, Your Question Answered / 13 responses

An excellent question on the Right of Abode came in just now. Raises a really interesting point of professional practice the likes of which very rarely present themselves these days.

QUESTION

I have recently been declined Permanent Residency status from HK Immigration, but believe I have grounds to appeal, and would like your advice. 

I am a Canadian citizen residing in Hong Kong as an Ordinary Resident from October 2004.

From June 2008 – January 2009 I was out of work (no employment visa), but still living in Hong Kong, staying on a tourist visa. HK Immigration declined my application based on this time period stating that: 

“Being a person with visitor status at the material time, section 11(10) of the Immigration Ordinance Cap 115 under which any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure, is applicable to your period of stay in Hong Kong on visitor status.”

During this period I was searching for work, and was still paying rent and utilities in Hong Kong, holding and utilizing my Hong Kong bank account, and conducting myself with the intention of settlement in Hong Kong. I did have a new job contract which stated I could commence work when my new employment visa was approved which came through on the 12th January 2009.

I understand that there has been a break in my continuous ordinary residence of 7 months, however I believe I may have grounds to appeal based on:

I was residing in Hong Kong during this period searching for work (I have a contract stating that I would commence my new job based on this) with the intention (Which still exists today) of settlement in Hong Kong.

 – I was paying rental/utilities, had a bank accounts in place with the intention of taking Hong Kong as my place of residence.

 – The application for my employment visa was placed in November and the application timeframe has pushed out the period from 5 months to 7 months

 – I have all taxation forms for the last 7 years proving it is my intention to settle in Hong Kong.

 Listening to your podcasts, I understand I will only get one shot at an appeal.

 My questions are:

 – If I build an appeal based on the circumstances above, would I have a good chance of having the ruling over-turned and Permanent Residency granted?

 – Do you know of other cases where there has been a break in the 7 year continuous period but Permanent Residency status was granted? And if so, on what grounds was the break in ordinary residence over-looked?

Look forward to hearing from you.

ANSWER

Hi, thank you very much for raising this question.

I think you’ve been hard done by and I can see your frustration. It’s an interesting example for me because it’s starting to confirm to me in my own mind that there could be a six-month rule in play which the Immigration Department are prepared to accept as being a reasonable length of time that could be said to be administrative flux in your continuity of ordinary residence. What I mean by this is that you find yourself between jobs, and in the meantime your employment visa expires and you don’t have your approval for your new employment visa, so in that time you are out of state employment visa status. So the only status available to you is visitor visa, and there is no hard fast rule exactly how long that can be. And because there’s no published Gazette which sets out those time frames, you only learn by experience. So it could well be that they’re playing a hard and fast rule against you.

So the trick really is to take it to the appeals process and seek to ask the Immigration Department to confirm is there such a hard and fast rule? And if so, you know, how long is it? And then you need to go on and make your case out on the merits of the evidence of settlement as you stated them.

And this should then give you a good shot of appeal at best. And at worst it will give you a good solid foundation of facts upon which to mount a higher appeal later on if you so choose to do. That’s the strategy I would adopt in this case.

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How Can I Get A Visa & Work Legally In Hong Kong?

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

This is the question most often asked of my profession really…

QUESTION

Hello,

I was a sponsored by my uncle’s company for 2 years then we had an argument and I left.

Now I’m holding a visitor visa.

For 6 months I’ve sent my resume to more employers than I can count but when it comes to the visa they say “We will call you back”.

I’m from Zimbabwe, 24 years old, graduated from a Tourism and Hotels University and I’ve a girlfriend from Hong Kong for more than 2 years and we actually live together but we won’t get married for the visa also  I’m not ready.

So, how do you suggest I go about getting a work visa again?

Thank you so much for your time.

ANSWER

Yes, it’s unfortunate you find yourself in this situation because, as you’ve discovered, many employers in Hong Kong find the idea of negotiating the labyrinth of an employment visa application for a foreign national just to be all too much to bear given that there is essentially no certainty of outcome.

And then there’s always the time that it takes for the visa application to place itself out before you’ll be lawfully employable and able to start your work. So it’s very difficult for me to be able to say to you that there is any sort of shortcut as regards this; the reality is, as you know, that you need to have a job offer to be able to at least promulgate an application for an employment visa, unless you use one of the other immigration statuses such as the Quality Migrant Admission Scheme or the Capital Investment Entrance Scheme, that will avail you of immigration permissions in Hong Kong so that you can take up employment without needing to deal with the visa question.

But being a graduate in hospitality, I suspect that the idea of being a quality migrant is probably too much in your situation, given the way that the Immigration Department are looking for top notch talent under that immigration programme, and under the capital investment entrance scheme, which is certainly available to you if you’ve got the necessary means and that’s a minimum of HKD10 million to lock into qualifying investment asset classes, it would seem that that might be beyond your reach as well.

Therefore, really the only pathway into employment in Hong Kong without the requirement for formal immigration permissions, at least initially, is if you go to Hong Kong University and in your instance get a master’s degree and get a student visa to allow you to carry out that course, which may take a year or two depending on the programme. And then once you’ve graduated from the Hong Kong University with your new master’s degree, you can enter the workforce for the first twelve months under the Immigration Arrangements for Non-Local Graduates (IANG). That effectively mean that you can just take up any employment once you’ve got the IANG stamp in your passport, which is a rubber stamping exercise in actual fact, as a fresh graduate, and that will then see you with a pathway into an employer. And, at the end of that first year, the extension that you will need is subject only to you showing that you’ve been employed in a job that is commensurate with your qualifications and the compensation is broadly commensurate with what is paid locally; and that is really the only clear pathway that I can see you getting into employment again without the engagement of an employer who is prepared to sponsor your employment visa. That, or as you are clearly in a loving, committed relationship with your girlfriend, you do, as you have identified, determined to get married, and thereupon you’ll be able to get a dependent visa; however, as you, I would never countenance the idea of marriage for immigration purposes, so it’s not recommended.

I’m sorry the news isn’t great, but that just seems to be about the maximum extent of your opportunities, I’m afraid.

I wish you all the very best.

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What Pathways To An Employment Visa Exist For A Fresh, Foreign University Graduate Arriving In Hong Kong Seeking Career Opportunities Here?

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

Whilst the Immigration Arrangements for Non-local Graduates afford a clean pathway to working permission for foreign nationals freshly graduating from Hong Kong universities, the situation is very different if your degree is from overseas and you’re seeking to work in the HKSAR straight after university.

QUESTION

Hi Stephen,

I would like to ask, I’m a fresh grad student in interior design from Australia. I am seeking an opportunity in Hong Kong.

I had a few companies that are willing to hire me here in Hong Kong, but the problem is that the employment visa / working permit is an issue for them.

I would like to tap your expertise in this situation.

What other alternatives exist to manage this immigration issue?

ANSWER

Naturally enough, Hong Kong, like any other jurisdiction that cares for its younger population and wants to afford the best possible opportunities for their graduates as they can. It is the position of the Immigration Department to not approve applications for employment visas from completely fresh graduates of foreign universities that come to Hong Kong looking for opportunities here; it’s hardly surprising because, you know, the vast majority of countries, as I said, would also implement the same policy to protect jobs for their new graduates too.

So if you do have a very strong commitment to pursuing a career opportunity in Hong Kong, you need to, in a sense, stop anticipating that there’s a simple sort solution available to you and start considering that you’re going to have to start making an investment in relation to Hong Kong in a way that you might not have anticipated until now. So just, you know, blue skying this and thinking about the way to bring about a possible positive outcome for you. One opportunity that might exist is if you find yourself a job offer from a company in Hong Kong that has an office in Australia where perhaps you could spend six months in Hong Kong on a training visa with the expectation that at the end of those six months you would then be sent back to the Australian arm of the group of companies. You would spend two years in Australia working on the ground for the same organisation and then at some stage after you have qualified as a professional for the purposes of the General Employment Policy under Hong Kong immigration rules, then be transferred back to Hong Kong to work for the Hong Kong arm of that business as a full time employee; in those circumstances you would qualify as a professional because you’d be a graduate and you would have had at least two years relevant working experience in your field assuming of course that you have undertaken duties of a supervisory and managerial nature during all of that time. So that’s one way to think about it.

Another way to think about it is well, why not further your education in Hong Kong and go on to get a master’s degree, spend one year studying in Hong Kong. You won’t be allowed to work during that time though, but spend one year studying, get yourself an advanced degree and then immediately take advantage of the Immigration Arrangements for Non-Local Graduates which will effectively see you move straight into lawful employability without the need to have a particular job offer at the point of converting your student visa into the one year fresh non-local graduate arrangements under the immigration arrangement for non-local graduates. So that’s another key way that you could get in.

If you come from a background of commerce and you can muster up the requisite finance and you’ve got a half decent business plan and a sufficient business acumen to think about going into business for yourself – quite a risky strategy given that you’re freshly out of university. But if you’ve got all those resources collected around you, you might think about starting a business in Hong Kong and securing the consent of the Immigration Department to join in that business there. You’d have to show that you’re in a position to make a substantial contribution to the economy of Hong Kong (but I’m not going to spend too much time talking about that because I’ve dealt with it ad nauseam elsewhere on this blog). So that’s the business investment visa.

And then finally, if you come from a particularly well heeled family and you can show that you’ve owned assets in your own name for at least two years to the tune of a minimum of HKD10 million, you could, make an application under the Capital Investment Entrance Scheme which would take six to eight months to finalise.

But at the end of that process, you would find yourself being lawfully employable in Hong Kong without any further questions asked.

So that would represent an expensive, albeit a quite realistic, chance of securing the outcome that you are looking for so that you can be in Hong Kong to carry on your career here.

So those are the options in a nutshell from 39,000ft. I hope you found this useful.

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Can I Come To Install Equipment In Hong Kong Without An Employment Visa?

Posted by The Visa Geeza / in Employment Visas, Visitor Visas, Your Question Answered / 9 responses

Permitted activity under the Visitor visa category seems to be something of a grey area and in the final analysis it all boils down to the attitude of the Immigration Department for a breach of conditions of stay. However, some activities are self-evidently ‘employment‘ in nature and the answer to this questions addresses it squarely.

 

QUESTION

“Hello,

I work for a German company involved in the pharmaceuticals industry and I am traveling to Hong Kong for work related reasons (installing equipment) and wondering if I require a work visa?

Every place I look, it says ‘to take up employment’. If I work for a German company, do I need a visa to do business with another company there? Such as have a meeting? I will only be there for one week.”

ANSWER

This is a commonly asked question, in actual fact, because there seems to be something of a grey area between what is permitted activity and non permitted activity under the visitor visa. Well, the law works to the effect that if you’re coming to Hong Kong to take up or join in any employment whether being paid or unpaid, you need to secure the consent of the director of immigration in advance, and that translates itself into an employment visa application.

And in my experience, if, for example, you were to present yourself at the airport seeking admission as a visitor and you told the officer that you were coming to “install equipment”, I believe the immigration officer would take you to task for that. And, quite, possibly deny you entry on the basis that you didn’t have the requisite immigration permissions to engage in that activity.

There is a world of difference, however, between being compliant at law and non compliant, but being practically able to get away with things because it’s a very short term deployment and also you may well be sort of hidden away in the depths of some commercial building somewhere out of sight of prying eyes and being practically able to sort of get on with the things that you need to do in order to discharge your duties, as it were. But none of that would alleviate the issue of you having the incorrect immigration status to do that.

So under the visitor visa, engaging in business meetings or speaking at conferences, making sales calls, concluding contracts, fact finding missions, participating in product orientation, all of this is permitted activity. But in my experience, if you are discharging your employment duties in Hong Kong for your overseas employer, then an employment visa will be needed. And it seems to me that discharging your employment duties in this situation will definitely cover installing equipment; so that’s the bad news. The good news is that such visas are readily available and quite quickly issued.

Of course, there’s still a process to be followed, but in my experience, installing equipment for sure requires an employment visa if you are to be compliant.

I hope this helps.

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