How Accommodating Are ImmD To Foreign National ‘Job Hoppers’ Seeking To Change Their Hong Kong Employment Visa Sponsorship All-Too Frequently?

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

So what DO the Immigration Department make of applicants who too-frequently seek to change their Hong Kong employment visa sponsorship?

QUESTION

I was previously working in Hong Kong for a company for the past 2.5 years and switched jobs 32 days ago.

My previous employer is now offering me a much senior position and really wants me back.

I had been with the company for more than 12 years out of which 2.5 were here in Hong Kong and would love to rejoin.

I have now been with the new employer for only one month and am wondering that if I resign and accept the role at my previous employer will the Hong Kong Immigration Department change my work visa again or will they make a big fuss about it and say NO?

Thank you for your assistance.

ANSWER

I’ll work on the basis or the assumption that when you ceased working for this particular employer some time back, you then made your application to change your employment visa sponsor through to your present employer, and in this regard then the Immigration Department are fully appraised of your exact circumstances insofar as you’re no longer working for your old employer, but you’re clearly working for your new employer and sponsored by them accordingly.

So then, in terms of how the Immigration Department are going to approach this, you’re only going to know once you’ve submitted your application. So, essentially, what you do is rather than resign from your current employer before taking up this new job (with your previous employer), then you need to get the Immigration Department’s permission before you take up that new work with your old employer. So, in making your application to change your sponsorship again, clearly you have to set out all the facts and circumstances that gave rise to the situation that you find yourself in: that you were working for this employer for twelve years previously, that in the wake of your departure a new opportunity has presented itself with that employer on improved employment terms and all the rest of that good stuff.

Essentially laying out that it was your intention, quite dutifully, to leave that employer behind and start your career with this alternate employer, and now you find yourself with this other opportunity which you feel that it would be advantageous for you to uptake; and therefore, could you please have the permission of the Immigration Department to re-join that employer with that new employment, with a new contract, and then see what they make of it. Now, the way the process works is that you file your application before you’ve resigned from your existing employment, and then during the currency of the application, if the immigration department are minded to approve you, they will send you a signal, in so much as, they’ll request a copy of your resignation letter from your present employer, speaking to the final date of your employment with your present employer. 

Subsequently, when you get that missive request from the Immigration Department, if it comes, then you can generally resign and begin to serve out your notice period. And the correspondence that’s generated between you and your current employer will speak to their last date of your employment with your current employer.

And if, as I say, the Immigration Department reminded to approve you, they will then issue you with an approval letter to uptake the new employment with your old employer, once again, from the day after the date that was recorded on the resignation letter that you adduced to the Immigration Department in support of your resignation from your current employer.

So that’s the way that you manage that. Again, essentially, you just have to make your pitch to the Immigration Department and explain, you know, why you’re troubling them with this application to re-join your old employer once again, when really only the course of a month has gone by. So, that’s the kind of the cut and thrust of it – you can certainly make your application, the existing employer needn’t know about your motivations and intentions until the Immigration Department have sent you a signal that they are minded to either approve or refuse your application; so, in that regard, I think you’re on pretty safe ground, all things considered, but I would make the application on the terms that I’ve just essayed for you. I hope you find that useful.

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If You Start A Company Based In Hong Kong Do You Always Need To Have An Investment Visa To Be Able To Run It?

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

The question of investment visa or not is actually quite straight forward. It’s all about ‘living’ in Hong Kong…

QUESTION

Hi Visa Geeza,

I’ve a question regarding putting up a company in Hong Kong.

I’ve been reading about how “easy” it is to set up a company in Hong Kong, however, it sounds too over simplified to me.

I’m thinking of putting up an Internet business start-up (media-related, think of a web publication) in Hong Kong while running it in another country.

I don’t plan on staying in Hong Kong (as that would mean a much higher cost of living) but I do want to run this business from outside HK while occasionally flying in from time to time.

Is this possible? Do I still need a specific Hong Kong visa of sorts to set up that company, register it with the authorities and run it?

Well, basically, can I ask for basic pointers on how a foreigner can put up a small start-up company in Hong Kong and run the company from outside Hong Kong (no intentions on staying there in the long term at the moment.)

Thanks for your time.

ANSWER

Hong Kong has a very well-earned reputation for being a jurisdiction where it’s extremely easy to establish a business, and to use Hong Kong as a launching pad for any kind of commercial activity, whether you are a Hong Kong resident or a foreign national alike, the actual process of establishing a business is very, very straightforward indeed. It’s arguably one of the most convenient and most efficient jurisdictions to launch a new company, and there is no statutory requirement under companies law that a director or a shareholder of a Hong Kong company needs to be a Hong Kong resident; however, to be a company secretary, yes, but not to be a director nor a shareholder.

So the question is begged then is if you do establish a company in Hong Kong as you’re thinking of doing, what are the immigration implications of so doing this? Well, the bottom line is that if you are a shareholder and a director of a Hong Kong company, and your intentions in relation to that Hong Kong company are such that you believe you need to be physically present in Hong Kong for the majority of your time in order to run and direct the affairs of that enterprise, then you will need to have a business investment visa in order to fulfil those practical roles on the ground in Hong Kong, as it were.

The difference between coming here as a visitor on a frequent basis, albeit occasionally, for example, that give you the ability to oversee and manage occasionally the operations of your affairs in Hong Kong, such as opening bank accounts, having the occasional meeting, perhaps coming to solve a few sort of commercial or corporate problems that have presented themselves. That’s all permitted activity under the visitor visa that’s granted to you when you arrive at the airport. However, if your intention to reside, and that’s very important intention to reside has crystallised, then the visitor visa is no longer an appropriate immigration status for you and you need to go through the process of acquiring a business investment visa.

The business investment visa approvability test involves that you need to show that in the context of your commercial endeavours in Hong Kong, through that Hong Kong company, that you can make a substantial contribution to the economy of Hong Kong. Now, I don’t intend to labour the approvability test for the business investment here because I’ve dealt with that on many, many occasions elsewhere on the blog.

But for all practical purposes, if you intend to live outside of Hong Kong and you want to use the convenience of Hong Kong as a jurisdiction for the purposes of launching your business and you want to manage that company remotely, and when you do come back to Hong Kong to oversee the affairs of the business, you’re only going to come for a temporary basis, and your intention is not to live here in support of that business, then you do not need any particular immigration permissions. You can certainly achieve those outcomes quite lawfully as a visitor, once you have arrived at the airport, or indeed, across the land boundaries from China or Macau. So that’s it. It really is as simple as you would read on the Internet and elsewhere. Hong Kong welcomes people like you, that are determined to use Hong Kong as a jurisdiction for your international business activities. So, go for it and welcome.

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What Visa Options Exist Where A Couple Have Met On-Line & They Wish To Live Together In Hong Kong?

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

So, what would the Hong Kong Immigration Department make of a relationship forged via the Internet?

QUESTION

Hello, I’m resident in Peru,  South America.

I met a Hong Kong woman by chat; she lives in Hong Kong.

We have been planning for me to go there and stay, only problem is that she’s still legally married.

Which would be my best option to get a permanent visa there so that we can live together in Hong Kong?

Get a job?  Can I be her dependant?

If she gets a divorce I can marry her and get the visa?

Any help or article you point me to read will be a big help.

I have been looking for an answer for a long time and I can’t find it.

Thanks

ANSWER

This is an excellent question and certainly reflects common practise of our times, so I’m really grateful to you for having raised it. The bottom line is that you’re going to struggle to secure any kind of residence status in Hong Kong on the strength of a relationship with your girlfriend for a number of different reasons.

Firstly, if you were in a position to marry this lady, which clearly you’re not because she’s presently married to somebody else, you would have to show to the Immigration Department to their satisfaction that your relationship is a genuine one, and that she would be able to sponsor you by way of financial capacity and also the ability to put a roof over your head.

Now just leaving aside the two challenges associated with food on the table and roof overhead, and we just look at the nature of your relationship with her, it’s very difficult if it’s been an Internet based relationship for you to show to the Immigration Department that, in fact, your relationship is genuine.

So one would assume that you’re going to have to come into Hong Kong on some of their immigration status first, pursue your relationship with your girlfriend, and at the same time look for other ways to remain in Hong Kong during the currency of that relationship maturing as it were, then clearly your girlfriend can finalise the divorce arrangements in respect of her present husband, and through the passage of that time it would become clear on all the facts that even though your relationship started by remote, subsequently the nature of how you spent your time together leading to a legal marriage, can be said to represent good evidence that your relationship is in fact genuine.

So there’s no possibility of the strength of your relationship with her today availing you of any kind of immigration privileges, as regards being resident in Hong Kong.

My second point to make is that there isn’t any permanent visa that you can pursue as such, really because under the basic law the only permanent immigration status that’s available is the right of abode which only accrues after you’ve been continuously a normal resident in Hong Kong for not less than seven years as a resident.

So whilst you may be able to secure an immigration status that’s commensurate with your rationale for being in Hong Kong other than the facts of your relationship with this lady effectively until seven years have accrued, you’re going to be a mere temporary resident in any event. So that kind of deals with the notion of a permanent visa so that you can spend time together.

Finally, then really you need to look to the other immigration state eye that, are available to foreign nationals that want to take up residence in Hong Kong, and you do need to have a rationale for being here, and that rationale then drives the nature of the immigration permissions that you get. I don’t propose that I labour the individual immigration state eye that you might want to consider because I’ll attach them to a couple of links at the bottom of this post so you can review that content there accordingly, albeit to say that the rationales are if you come into study, you need a student visa, if you’re coming to join a legal spouse, you need a dependent visa, which, as we’ve seen, doesn’t apply to you, if you’re coming to take up employment, you need an employment visa, if you’re coming into establish or join an existing business, you need a business investment visa, if, you are of particularly high talent, you could apply under the quality migrant admission scheme, and if you are a man of considerable means, then you could make an application under the capital investment entrance scheme. Of course, you could always come as a visitor and you’ll be granted a certain period of time upon arrival, and, in that regard, that’s probably your early bet to, progress the relationship with your girlfriend in the flesh, as it were.

If I may not be so direct to couch it in those terms but certainly arriving as a visitor, assessing facts on the ground, determining what your longer term immigration options are, is the way forward, I believe. Anyway, I wish you all the very best.

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How Can I Get The Approval Of The Immigration Department To Change My Hong Kong Employment Visa Sponsorship Without My Current Employer Learning About It?

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

Changing jobs in Hong Kong requires the permission of the Director of Immigration…

Dear Stephen,

How can I get the approval of the Immigration Department to change my Hong Kong employment visa sponsorship without my current employer learning about it?

I have a stable job in Hong Kong and am finalizing an offer with a potential new employer here.

Since there is always a risk of immigration refusal, and I don’t want to lose my current job if the change of employer application does not work out.

How to do this without my current employer knowing?

Basically the question is how to get the new employment visa arrangements approved by the Hong Kong Immigration Department before letting my current employer know about it?

Thanks a lot! 

ANSWER

This is quite a common situation, as you can imagine; the Immigration Department devised a way of dealing with it that’s quite logical. Effectively, you go ahead with your application to change your sponsorship and submit all the normal documents to that end, and then during the currency of the application, the Immigration Department when they’re about to finalise, will typically invite you to submit a copy of a resignation letter that records the fact that you have a last date of employment with your current sponsor.

Then once you submit that to the Immigration Department, they will then issue a letter of approval for your new position. Now, of course, there always is an implied risk in this that you go through the process – the Immigration Department will then issue the request for the resignation letter and then they say no to your application.

Normally though, in all the years that I’ve been doing this, I’ve never seen the Immigration Department take that tack. Therefore, when you receive a request from the Immigration Department for the final date of employment with your existing employer, that’s a tacit signal that your application is about to be approved. So you then clearly, notify your existing employer, hand in your notice, do what you need to do; the documentation that’s generated in pursuit of you terminating your existing employment is then submitted to the Immigration Department to finalise your new change of sponsorship application and then they will positively approve you, in my experience, thereafter.

I hope you found that useful.

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Is It Ever OK To Work Full Time In Hong Kong Without An Employment Visa – For The Hong Kong Subsidiary Of An Overseas Company?

Posted by The Visa Geeza / in Employment Visas, Refusals & Appeals, Your Question Answered / 3 responses

Work full time in Hong Kong without an employment visa ? This is a bit of a hoary old chestnut this question but a really important one nonetheless so I am grateful to the questioner for posing it.

QUESTION

Hi there,

My Hong Kong employment visa application has just been refused. My company who are sponsoring me applied on my behalf.

Apparently it was the first visa for them to have been rejected. We are going through the appropriate channels to re-apply.

I was interviewed in Hong Kong for the position I am now holding, whilst in the USA. I am being paid in the USA, although my wages are being internally invoiced to Hong Kong (the company in the USA being the pay-master).

My question being: can I enter Hong Kong with a visitor visa, as a USA national, and be paid in the same manner though the USA?

Whilst of course waiting for the re-application of the visa to be completed.

Thanks for your advice. 

ANSWER

In the final analysis, it doesn’t really matter what the origin of your employment contract is or where you end up getting paid or whatever the financing mechanism is between the various entities in the group as to how you get paid. The issue really relates to you being physically in Hong Kong carrying out employment activities, because it is unlawful to work in Hong Kong without the permission of the Immigration Department, whether paid or unpaid irrespective, as I say, of the source of the payment or where the contract is cited.

So if you are going to wait in Hong Kong until such a time as your reconsideration application has been finalised, then in order to ensure that you don’t break the law, its important that you don’t carry out any employment duties. And the Immigration Department are totally wise to what your intentions are given that they are presently considering an application for you to take up employment; so, ostensibly at face value, is extremely easy for them to understand, what you might be doing here whilst you wait for your employment visa application to be finalised. So, I think it’s really important that you don’t confuse the origin of employment and where you get paid with the fact that taking up employment activities, irrespective of whether you get paid or not, is a breach of your conditions of stay as a visitor.

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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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