Hong Kong Visas Made Easy

Can I Go From A Hong Kong Investment Visa To An Employment Visa And Back To An Investment Visa Again?

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

Entrepreneurship is a fluid beast! This post deals with special situations around the Hong Kong Investment Visa.

QUESTION

Hello,

I was on an investment visa for a year when I started my own business and then took on a full time role with another company. 

I was transferred to an employment visa. 

I am now considering leaving this role and going back to actively work in my business. 

Can I apply for an investment visa for a second time or does it simply get transferred to my own company as an employment visa?

ANSWER

Great question and I’m so grateful to you for asking it.  I have seen this situation probably a dozen times in the last 20 years, and in every single instance the Immigration Department have come to the party and have indeed allowed a previous investment visa holder who has then changed status to an employment visa, and who then has a change of heart and decides that paid employment is not really for them and they wish to go back to their own business pursuits once more; and the Immigration Department have approved these applications, as I say. So there’s no reason to suggest that you won’t be successful in your application too.

The way that you go about it is to effectively treat the application as a change of category application going back from employment visa sponsored by a third party through to business investment on the strength of your own enterprise in Hong Kong.

The approvability test is just the same as it always is for an investment visa. That is, in light of your present circumstances, given that you once in a sense, put your business on the shelf while you went off to work for another employer. Your business now moving forward, if the Immigration Department allow you to do so, will uh, mean that you can make a substantial contribution to the economy of Hong Kong. And I’ve dealt with the investment leisure aprovability test elsewhere on the blog, so I’ll let you go and research that and understand effectively what’s required for you to be successful. However, as the essential premise of your investment visa activities were originally approved, it’s certainly feasible to expect that you’ll get approved this time around.

Generally speaking, you’ll certainly need to have at the requisite level of resources, you’re going to have to have a pathway to the creation of local employment opportunities once again, and you’re going to have to have business premises that are suitable for you and your proposed activities; the Immigration Department will effectively put you to that test. And I think, as I say, it’s fair for you to be able to pass it, but you’re also going to have to sort of plug the gap as to kind of what happened whilst you’re an employee in the business. I assume, as I mentioned, it was probably on the shelf in the meantime.

My advice therefore is for you to talk to the Immigration Department about how you sort of put the business into a deep freeze and that you are now ready to sort of bring it out into the open and go for it one more time. So, just as I say, the key thing is to pass the approvability test all over again.

The fact that you had an investment visa once previously, all goes well, on the basis that you can explain the gap as to what happened to the business during the time that you were an employee and that on the basis the Immigration Department approved you to join in this business one more time, you can make a substantial contribution to the economy of Hong Kong.

Do it on the fifth floor of Immigration Tower, via a change of category application, and you should take between, I’d say, four and six weeks to finalise.

Additionally, if your current limit of stay has got less than six months on it, use not only the ID999A application form, use also the ID91, which will allow the Immigration Department, once they approve you, to grant you an extension to your current limit of stay by a further year. As I say, assuming that you’ve got less than six months remaining on your current limit of stay, then include the ID91.

I hope you find this useful.

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Can I Interview For New Job Opportunities In Hong Kong If I Hold A Temporary Training Visa Here?

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

The Hong Kong training visa is designed to allow foreign nationals to come to Hong Kong for a limited time to undergo or deliver training. Will ImmD entertain an application from a training visa holder to take up employment with another business while that training is ongoing?

QUESTION

Dear Visa Geeza,

Thanks in advance for your help.

I’m currently on a training visa, but interviewing with potential employers for a full-time position.

In case I decided to cut my training period short, would I be able to apply for a work visa within the validity of my trainee visa?

In that case – upon approval of the work visa – would the ID automatically “cancel” my trainee visa and issue me with a work visa sticker?

Thanks

ANSWER

Training visas are granted to foreign nationals who wish to come to Hong Kong to either deliver or undergo training, usually for no longer than six months. Occasionally you can make it stretch to twelve months if you’ve got an exceptionally good training plan and a good reason for needing twelve months rather than the more typical six months. Interns themselves typically get about a three-month training visa. So, training visas are relatively easy to secure from the Immigration Department, all things considered. But then the wider question is begged as to if you can then adjust your immigration status whilst holding the training visa into a full employment visa.

Certainly if you want to try and achieve that outcome with the same sponsor of your training visa, then no, that’s not going to work. There is an expectation that at the end of the training period, the training visa holder will return back to the place where they came from in order to either use the skills that were imparted to them while they were in Hong Kong holding their training visa, or they’re going back to their home country to carry on what they were doing before they came to deliver training here; so when you make an application to adjust your status from training visa through to an employment visa sponsored by a new third party, the Immigration Department are open to the receipt of those applications. So there’s nothing that precludes you from filing the application. But you will still need to pass the approvability test for the employment visa as prescribed under the General Employment Policy; and you’ll need to satisfy the Immigration Department that you are a professional and in the context of the job offer extended to you, that you are the person to do that job and they can’t reasonably expect it to be up taken by a local candidate. So, there’s no advantage afforded to a training visa holder who’s going to make an application for full employment visa subsequently. So the real focus is going to be on passing the approvability test in of itself and in the context of the eventual full job offer that you receive. That’s the way the situation plays out.

I hope you find this useful.

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Does Choosing Not To Pay Yourself A Salary Mean It’s OK To Run A Business In Hong Kong Without Getting An Investment Visa First?

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

There appears to be a misconception among foreign nationals that you can be living here and it be OK to run a business in Hong Kong without getting an investment visa just so long as you don’t pay yourself a salary…

QUESTION

I currently hold a working visa which is still valid for almost 2 more years.

My contract has now been terminated and I would like to set up a limited liability company in order to do some freelance work.

Can I set up the company and send invoices to my customer even if I am on the old visa?

I do not need to pay myself salary at the moment, so can I wait to apply for a new visa until then?

So I would not be working for my company but my company would already get money without having an employee.

Thanks for your feedback

ANSWER

When you receive an employment visa, you receive two privileges: you get the privilege to work for the sponsoring employer and that employer only, and you get the privilege to reside. When you stop working for your existing sponsoring employer, your privileges to work cease, but your privilege to reside continues until your current limited stay expires, which in.

Your case is another two years from now. So the fact that you’ve got your privilege to work having ceased effectively means that you can’t take up employment for any other party, including yourself, paid or unpaid, without the permission of the director of immigration. So it really doesn’t matter that you are planning to go into business for yourself on the strength of your existing employment visa, and that you’ve decided that you don’t need to pay yourself until such a time as you think that you’ll be ready to make an application for your investment visa; as I’ve stated, the law is clear: you’re in Hong Kong today in order to do the work for your current sponsoring employer, and you’re not permitted to do anything else for anybody else, including yourself, without first getting the director’s permission.

My advice to you is to make an application for an investment visa seeking to change your category from sponsored employment through to business investment. And don’t be, in a sense, persuaded by a logic that says – well, if I’m not paying myself, then I’m not working from anybody; the truth is, it’s the action that the Immigration Department are interested in, not so much the means of compensation. As I say, the law is clear: you can’t take up any employment in Hong Kong, paid or unpaid, without the consent of the director of immigration. And that clearly includes a circumstance where you’re going to be working for yourself, given that you’ve incorporated the company, but you stopped working for your official sponsor of record.

I hope you found that useful.

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What Compliance Obligations Do I Have If I Hold A Hong Kong Employment Visa And Want To Start Freelancing After I Stop Working For My Employer-Sponsor?

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

I hold a Hong Kong employment visa and want to start freelancing…

 

As a foreign national temporarily resident in Hong Kong on a sponsored employment visa, there are a number of different compliance issues that need to be addressed if you lose your job and you fancy embarking down the path of freelancing on your own behalf.

QUESTION

I have work permit granted to me (I was hired as a professional here in Hong Kong in my last employment).

Now, I am in job transition and I would like to do some freelance. 

Must I form a company here in order for me to do business with clients?

Can I issue invoice under my personal name, without a registered company here in Hong Kong?

ANSWER

There are two critical elements to this question that I propose that I deal with in order of priority, in terms of the difficulty associated with achieving the compliance outcome, but in the grand scheme of things they’re equally as important as the other because if you don’t take care of either of these components, you’ll be out of compliance and you may find yourself at odds with the authorities.

Firstly, just to deal with the question about the issuing of invoices – in Hong Kong, if you wish to carry on a business, irrespective of your immigration status, you need to be registered with the Inland Revenue Department, which means that you have to make a decision as to the kind of business vehicle that you want to use, either a sole proprietorship, incorporate a limited liability company locally, or enter into a partnership with another party, or indeed register a company that you may own indirect in another jurisdiction, that you report its presence to the registrar of companies here and go through a registration exercise to establish that entity in Hong Kong. But either way, you need to have a business vehicle and that business vehicle needs to be formally registered with the Inland Revenue Department through the issuance of a business registration certificate; and once you have a business registration certificate, you’re effectively then enabled to start carrying on a business.

So until you have that business registration certificate completed, then you are not allowed to carry on a business, therefore you can’t issue any invoices under your personal name. So, you just need to make a determination as to which business vehicle you prefer to use, and whilst I’m an immigration guy with a legal background, it’s kind of beyond the scope of the advice that we give as to the type of business vehicle that you might want to choose and the benefits, the advantages and the disadvantages accordingly. But certainly get your entity registered with the Inland Revenue Department and get yourself a business registration certificate so that will put that to bed.

The whole question of what is permitted activity whilst you’re here as a sponsored employee under the General Employment Policy as a professional, because your permissions to remain in Hong Kong are directly connected to you continuing to do the work for the employer sponsor, that underpinned your employment visa permissions.

So the moment that you stop working for that particular employer effectively in terms of ongoing employment and/or commercial activity in your own right, all bets are off until you approach the Immigration Department and make an application to the director of immigration to join in or establish a new business which takes the form of an investment visa application.

So in your situation, you’d have to make an application for an investment visa under the change of category manoeuvre, taking you from sponsored employment with a third party employer through to business investment in your own right. And the consents that you need under the business investment visa are in a sense quite challenging to get for one man businesses or freelancers because the approvability test for the investment visa is that you need to show that you’re in a position to make a substantial contribution to the economy of Hong Kong; and typically, by definition that means that one-man businesses are not going to by in of themselves represent the possibility of substantial contribution because typically there’s only one person benefiting; and I’ve written and posted quite a lot about the investment visa for freelancers and one-man businesses previously, so I’ll refer you to the various links appended to this post that will allow you to embark down that journey of discovery.

In a nutshell, the bottom line and the key message is that you’re not allowed to engage in any independent freelance activity until you’ve secured the permission of the Immigration Department irrespective of which business vehicle you choose to use. Um, but a necessary precondition to approval is that you do have a business vehicle that’s registered within the Inland Revenue Department.

Okay, I hope this helps.

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Can I Work In Shenzhen On My Hong Kong Employment Visa?

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

Can I work in Shenzhen on my Hong Kong employment visa?

So, just what is the deal with being employed ex Hong Kong but actually working in China?

QUESTION

I just graduated with a Master’s degree from a Hong Kong university. I am still a Hong Kong resident with student status. My university allows me to now apply for an employment visa.

Luckily, I managed to find a long term job here from a Hong Kong employer.

However, most of my work will be done in Mainland China (Shenzhen) and I will need to be in Mainland China most often during the year.

Could you let me know what kind of visa I should apply for in order for me to travel frequently between Mainland China and Hong Kong assuming the boundary will open fully later this year?

ANSWER

On the face of it, it appears that your question is relatively straightforward – what kind of immigration arrangements do you need to anticipate to allow you to have effectively Hong Kong employment but be deployed in China? However, there are some deeper issues that I’d like to address in this answer and I’ll hopefully give you something to think about.

So presently you’re in Hong Kong as a student visa holder; you’ve just graduated and as a result of you graduating from a Hong Kong university with a postgraduate qualification, you can then immediately adjust your immigration permissions from student through to the immigration arrangements for non-local graduates that will give you an employment visa. The Immigration Department will effectively rubbish, stamp that into your passport and that will then give you effectively a twelve-month employment visa where you can go out and you can work for anybody without needing to get the permission of the Immigration Department in respect of a particular job for a particular employer, effectively. It’s quite blanche, and at the end of the twelve months you seek an extension which the Immigration Department will give you usually for two years on the basis that you can demonstrate to the Immigration Department that you’ve got a bona fide Hong Kong employment with a Hong Kong employer. And it seems to me from your question that’s effectively all in place for you.

Now turning to the larger issue, which is if you’re going to be working for Hong Kong employer but principally based in China, then in effect you need to look north to the jurisdiction of China to understand what kind of immigration permissions are needed there.

This isn’t something that’s controlled in Hong Kong, and you can’t make an application to the Hong Kong Immigration Department in relation to China visas. Moreover, China employment visas are not within our skillset, so we deliberately eschew doing any China immigration work, focusing purely on Hong Kong. But I’ve included a link in the text to your question which sets out that there are changes afoot in relation to Chinese immigration rules. So you might want to review that and then do some independent research to identify effectively the kind of visa that you’re going to need in order to be, as you stated, deployed in China, notwithstanding the fact that you’re principally engaged to a Hong Kong employer with a Hong Kong employment contract. And there’s no doubt that there will be some suitable China visa for you. So I wouldn’t be too concerned about being able to to procure that status. I don’t think your plans are going to be thwarted in any way as a result of the circumstances that you find yourself in.

However, there is another question that sort of runs large throughout your situation and that is what happens to you in relation to your time in China whilst you’re working for a Hong Kong employer, and your ability at the seven-year mark to make an application for the right of abode in Hong Kong.

That is, even though you have been engaged by a Hong Kong employer and you have had a Hong Kong employment visa endorsing your passport, potentially all throughout the time that you’ve been working for that Hong Kong employer, can it be said in the circumstances of your life as they’ve been lived in China, that you have been ordinarily resident in Hong Kong during the time that you’ve been spent working for your employer in China?

And the test for ordinary residents is that for the purposes of a right of abode application subsequently is to show that you’ve been continuously and ordinarily resident in Hong Kong for not less than seven years. And any absences from Hong Kong in that time must have been of a merely temporary nature as evidenced by what you leave behind to return back to at the end of each temporary stay abroad.

So the concept of settlement in Hong Kong looms large throughout your situation and you need to be very careful about how you configure your life and how you organise your affairs in relation to Hong Kong, even though you’re spending a lot of time in China, because if for all practical purposes you secure your Hong Kong employment visa and then decamp to China and then only ever come back to Hong Kong occasionally to visit and you don’t maintain a home in Hong Kong and it can’t be said that you’re actually settled in Hong Kong if you have several years of that experience in China and haven’t maintained any of your connections to Hong Kong throughout that time, you may inadvertently break your continuity of ordinary residence.

Now, it doesn’t automatically follow that, just because of the circumstances that you’re in, that you will break your continuous ordinary residence. But you do need to do some thinking about how your life is going to be configured so that if it is your intention in due course subsequently to go on to become a permanent resident, you don’t fall afoul of the continuous ordinary residence and settlement rules that apply to getting a right of abode approval at seven years.

Hope this helps.

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Can I Sponsor Myself For Freelance Work ‘On-the-Side’ Whilst Working For My Current Hong Kong Employment Visa Sponsor?

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

This is joining in a side business albeit in another name…and a solution for certain types of Hong Kong Employment Visa holders thinking about freelancing in Hong Kong

QUESTION

Info

-NZ Passport holder

-Working in Hong Kong for three years with an employer.

Hello

I would like to know how I would go about starting a business in Hong Kong. I would like to start a freelance business. I am worried about my visa with this if I sponsor myself.

Should I create my business now, and apply while I am with my current job to be safe?

ANSWER

This question really gives us an opportunity to discuss the possibilities of getting independent visa permissions for “freelance work” and, given the circumstances, as I understand them, the best possible way for you to bring about the outcome that you’re looking for, firstly, the thing to appreciate is that you presently have a Hong Kong employment visa sponsored by a third party employer.

If you wish to leave that employer and then go into business for yourself as a freelancer, as you state it, then you’re going to have to make an application for what’s known as a business investment visa. So you’ll be changing your category from sponsored employment through to business investment, and at that time you’ll have to show to the Immigration Department that you can make a substantial contribution to the economy of Hong Kong. Now, I’ve dealt with the elements of that approvability test elsewhere on the website, just do a search under business investment visas and you’ll find a lot of information about that.

The problem therein lies that you are going to be freelancer, which means it’s a one-man business, and such businesses normally are not in a position to make a substantial contribution to the economy of Hong Kong because there’s only one person ultimately going to be advantaged, that’s you as an individual freelancer.

So, I would urge you to look very hard and carefully at your plans to leave your employment and then go and start out working for yourself and making that application as a freelancer. Because unless you are in a position to create local employment opportunities, have a properly set up office and are particularly well resourced, you may find that the Immigration Department don’t buy into your argument and therefore you may not get the appropriate approval that you’re looking for. So, that really is probably the riskiest part of the proposition, as I understand it.

You can, on the other hand, take another path where you effectively maintain your current employment and, with the written permission of your existing employer, you request the Immigration Department to approve an application from you to join in a side business; and in doing those freelance activities on the side, the Immigration Department will arguably give you the approval that you’re needing. And, as I say, as long as you’ve got the permission of your current employer to be able to do that things should be okay.

So in summary, my best advice would be if you really are going into freelancing, in a sense, abandon the idea of being a self sponsored employee by getting a business investment visa.

I think it’s just probably too hard and possibly beyond your initial expectations of what you want to do commercially and how you go about earning a living and stick with the full time sponsored employment if it’s possible. Therefore, get the permission of your current employment visa sponsor to freelance on the side and then secure a business registration certificate as sole proprietor and then make an application to the Immigration Department for permission to join in the side business with your current sponsoring employer’s consent. That way you will be able to achieve your objectives, and at some stage in the future, you never know, your freelance business might grow to the point where you do need to create local employment opportunities and you are going to need independently a properly set up office and you might have the requisite resources in play, both financial and other commercial resources, to the extent that the time spent as a freelancer on the side could be a proving ground for a bigger application subsequently, where you would be able to pass the approvability test and show that you can make a substantial contribution to the economy of Hong Kong.

I hope you found that useful.

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Can You Study In Hong Kong If You Only Possess A Visitor Visa Here?

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

What kind of activity is permitted if you are in Hong Kong on a Visitor visa? Does this include informal study?

QUESTION

My wife and I are spending some time here in Hong Kong.

We do not work here and we do not intend to.

We just enjoy living here, enjoying the city.

We have sufficient savings to support ourselves financially. So yes, we are both here on a Visitor visa.

My wife would be interested in studying English to keep herself busy and improve upon her English.

She contacted the British Council but was informed she could not enrol because she did not have a Hong Kong ID card or a study visa.

Do you have any advice on how to proceed?

Applying for a study visa could be an option, but it will probably be too long before it is granted – if it is granted at all.

Thanks for any insight you can offer us.

ANSWER

As a general rule, it is not permitted activity to remain in Hong Kong as a visitor visa holder if it is your intention to study here. Therefore, you need to make an application for student visa, and there are essentially two tracks for the grant of the student visa: there is a track which is followed when you intend to follow a course of study in a university that will lead to a degree qualification, and then there’s a course of study for less formal study that doesn’t result in a formal degree and, in fact, can be offered by other properly incorporated and established learning institutes in Hong Kong that are not full blown tertiary education institutes, and many of the English schools and other language schools around town are very familiar with the process of proceeding with the grant of a student visa in support of actually what is representative of economic activity in Hong Kong. The Immigration Department will try to avail permissions for people to enrol in those less formal courses of study and will lead to the grant of a three or a six or possibly even a nine-month period of stay, depending on the nature of the programme and how the party that is offering the study programme is received or acknowledged by the Immigration Department as being properly empowered and orchestrated and constituted to support foreign nationals in their applications for student visas to participate in their programmes.

These student visas take 4-6 weeks to finalise and whilst I appreciate the British Council haven’t played ball with you this far, that’s more than likely because of the, in a sense, British government mandated-orientation of the British Council. But if you look around Hong Kong and find other properly established language institutes, you may find that they have all the expertise and indeed experience to assist you secure a study visa for your wife while she’s in Hong Kong.

I wouldn’t give up on the idea of a student visa just because the British council have taken one orientation towards you. Shop around, have a look, see what’s going on elsewhere and anticipate that there’s a very good chance that your wife will be able to get a student visa so that she can engage in her studies of English while she’s in Hong Kong and while you remain with her as a visitor.

Okay, I hope you found that useful.

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