Simple enough of a question – will your Hong Kong work visa be compromised if you are forced into bankruptcy while temporarily resident in the HKSAR?
QUESTION
If I am currently a working visa holder in Hong Kong, how will my visa be affected if I go bankrupt?
Will the Immigration Department tell me to leave Hong Kong immediately or will I be allowed to stay until the expiration of my limit of stay?
Also, I assume this will definitely be a huge detriment if I want to apply for an extension of stay right?
Thanks.
ANSWER
This is a great question and I’m surprised that it hasn’t presented itself over the last few years in its current guise. But essentially the thing to understand is that if you have become bankrupt in Hong Kong, it’s not good news. As you can appreciate, the ability to remain here over the long haul could be problematic and is indeed highly case specific.
Whilst you are being managed by a trustee in bankruptcy and you do maintain your current employment, then the Immigration Department will probably have something to say about that arrangement and would look at the extension of stay with a set of eyes that to put it sort of mildly, would not be routine.
Doesn’t automatically follow that you wouldn’t get an extension of stay. But if you’re seeking to change your employer and all this kind of stuff, then it might be problematic. But in the final analysis, it really does all depend. In any event, at the point of bankruptcy, if you do have a current limit of stay endorsed in your passport, that shouldn’t be affected.
That is, the Immigration Department won’t suddenly come sweeping down on you and say, hey, you’ve been made bankrupt. Therefore, we’re going to put. Pull the rug from under your feet and cancel your current limited stay and send you off, uh, from whence you came. No, the issue really only presents itself in the context of an application subsequently to extend your stay or to go through the processes of perhaps changing your sponsor.
Both of which would require express disclosure to the Immigration Department so that they could make a true assessment of whether or not you represent a security objection to Hong Kong, all things considered, as a result of your bankruptcy. But certainly, in my experience, there shouldn’t be an immediate impact on your current limited stay. Extensions could be problematic as could be change of sponsorships, if that’s what’s going on.
Okay, I hope you found that useful.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
This post deals with the requirements for getting permanent residency in Hong Kong
The modern, connected economy throws up myriad ways for people to organize their lives and business affairs and, as can be seen from this great question, how might ImmD respond to an application for the Right of Abode where an internet entrepreneur bases himself here with his family but they choose to spend a considerable amount of time elsewhere?
My wife and I first arrived here in April of 2011. I was on a working visa but in some ways it was similar to an investor visa. I have always been an online internet entrepreneur, opening, running and closing dozens of online businesses. They have always been run from an offshore “haven” location where essentially there is no need to maintain books or file annual tax returns.
As my citizenships don’t require me to pay taxes on worldwide income and as I had been essentially a resident of nowhere, basically a perpetual tourist for the past many years, I haven’t really had to settle down in any way.
So, in early 2011, upon hearing from me that I wanted to move to and settle into Hong Kong, my lawyer arranged for my offshore company to buy a defunct Hong Kong company and then have that Hong Kong company sponsor me for an employment based visa in Hong Kong.
That all seemed to work quite smoothly and I was in HK in just a few months from start to finish.
Since arriving in Hong Kong with my non-Hong Kong wife in early 2011, we have recently had a baby. The problem is that we like Hong Kong and have made it our primary home, renting a nice flat, sponsoring a live-in DH, moved our bank accounts here, receive all of our mail here, pay our salaries annual taxes here, I own the business here, pay its fees, rent an office, pay the business profits taxes, etc., etc. – basically spend a lot of money in Hong Kong for all of these things to put up the appearance of being a full-time resident.
But, we really don’t like spending all of our time in Hong Kong. We have homes in several other countries, whether our own or family homes, and I really don’t need to be in any one location in Hong Kong or anywhere to run my business affairs.
Until our children are required to be in school for 8-9 months of the year, I’d prefer to keep traveling.
My work is all done via laptop and cell phone. Arguably I could say that some of this travel is necessary for work, as I do meet or host clients from time to time, but maybe 1/3 at the very most and I don’t keep receipts or claim them as business expenses.
The only employees of the Hong Kong subsidiary are me and two admins, and they really only take care of Hong Kong affairs and little else. We do like spending some time in Hong Kong, maybe a few months per year in total, but spend the rest of our time on holiday, as much as 9-10 months of the year. I hope to continue this pattern until we have reached the 7 year mark in early 2018, at which time I’d like to apply for and hopefully receive our permanent residency.
And, despite what may seem like lack of ties to Hong Kong, we have by far much more attachments to Hong Kong than anywhere else in the world , though my wife and I are each dual nationals of two different countries (4 passports between the both of us) so we certainly would call Hong Kong home above all else.
Would this pattern jeopardize our permanent residency application? It would be precisely at this time, when 7 years will have been reached that we’ll finally be forced to settled down and set our oldest child into primary school and we would plan to do so in Hong Kong.
I do want to ultimately obtain PR status, but also want to spend most of my time until that time traveling abroad. I’d like to find out now rather than later, for if I am wasting my time with this and there is a chance my PR application would be rejected, I’d just as well give up the HK office, the HK business, the 2 admins, the rented flat, the DH, basically all of it, move everything back offshore and rent a suite at the four seasons for the 2 months of the year that I might actually be in Hong Kong, for it would be a LOT cheaper.
So, am I wasting my money continuing this charade for many more years or will it all work out in the end as long as I maintain all of the things that tie us to Hong Kong?
So, can I get Permanent Residency in Hong Kong?
ANSWER
The test for Right of Abode for a long stay foreign national resident of Hong Kong is to be able to show that you’ve been continuously and ordinarily resident in Hong Kong for a period of not less than seven years, and that any absences from Hong Kong in that time have been of a merely temporary nature as evidenced by what you leave behind to return back to at the end of each temporary stint abroad.
You also need to show that you have settled in Hong Kong at the time that you make your application for permanent residency. So on the facts that we’ve got in this question it would appear that you’ve actually got in place all the necessary presumptive evidence to denote that you are settled in Hong Kong.
The fact that you’ve got a home, the fact that your child was born in Hong Kong, you’ve got a full time sponsored foreign domestic helper, you’ve got your business in Hong Kong, you’re reporting for tax purposes in Hong Kong, you have an office and you’ve got a couple of employees, and on the basis and on the assumption that you continue to maintain all of that in situ for the rest of the time that you spend in Hong Kong, on the strength of that evidence, there is enough presumptive evidence to show that you are, for all practical purposes, settled in Hong Kong.
Now this then turns to the nub of the question, which is how much time is expected for you to be spending in Hong Kong to settle the idea of continuous ordinary residence. Continuity is, on the face of it, established through the maintenance of immigration status, residents immigration status back to back throughout all of that time; and therefore we then just need to look to the number of days and how that impacts on the perception of your notion of being settled up to and including the seven year mark. If you’ve got a really good reason for you spending a lot of time outside of Hong Kong, then the Immigration Department will accept that, for what it is ostensibly in the vast majority of cases this is settled through the fact that your commercial activities, your commercial endeavours whilst ostensibly based in Hong Kong are keeping you away from Hong Kong.
Question is then begged as to what about the situation where if you choose voluntarily to spend time away from Hong Kong because that’s what you prefer to do? And how would the Immigration Department perceive that as, in a sense, negating your idea of ordinary residence; the law, in actual fact, the common law, allows you to have a place of permanent residence, believe it or not, in two different places. You can be ordinarily resident in more than one place, any one point in time. But that’s an argument that you don’t really want to be having with the Immigration Department. What it’s better to do is to sort of lay down the necessary sort of tracks. Now anticipating that you’ll have a really good excuse at the seven year mark as to why you’ve spent all of the time outside of Hong Kong that you have given of course that that’s offset by the fact that you have everything else in place that shows that Hong Kong is effectively your only place of permanent residence, because of the facts on the ground that you’ve created in that time.
I also assume that at the time that you make your application, your child will be in school. And that’s again further good evidence as to the fact of settlement at the time that you make your application.
So it’s a tough one to definitively advise you on. However, my best advice would be anticipate that it’s the number of days in Hong Kong that are going to be the issue, and the time that you voluntarily choose to spend away from Hong Kong. And that’s something to a large degree you can control. The requirements are that the continuous, ordinary residents, effectively, are structured in such a way that even on the application form for Right of Abode, any absences that are less than six months don’t need detailing or specific explanation at the time that you commence your permanent residency processes.
But the Immigration Department will go through a tally to look to see effectively how much time you spent in Hong Kong and all of that time. So my best advice really would be carry on with what you’re doing but don’t spend a lot of time away, in large blocks.
If you can organise your affairs such that you can come into Hong Kong for a week every two or three months or so, prefer a little bit longer than that, and maintain that sort of profile throughout all of the time that you’re in Hong Kong.
And then perhaps when your child gets a little bit older and the opportunity for your child to go to preschool then put the child in preschool. Perhaps that would be, you know, when he’s, he or she is three or four years of age, and show that the child’s been in preschool, even though when he’s not in preschool you’ve chosen to be elsewhere.
So the saving grace, as you’ve quite properly identified, is that you’ve got in place all the infrastructure to suggest that Hong Kong is your, effectively your only place of permanent residence, and the challenge then is just to map out how you decide, to experience your lives over the course of the next five years, and the choices that you make in terms of how much time you decide to spend in Hong Kong, in terms of number of days and also the number of trips that you make back to Hong Kong.
I mean, really avoid staying away for several months at a time, continuously, because that kind of sends the wrong message. But if you are coming back on a regular basis, even if you choose just to spend a small amount of time when you’re back here, I think you’ll find that the profile that you’ll build up over the course of the next five years should see you in good stead. And you’ll want to be able to persuade the Immigration Department that you’ve passed the test for approvability for a permanent residency application.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
This post deals with the options for a Hong Kong Work Visa Holder who owns shares in a company but also intends to get enrolled in a full-time Masters Degree Programme
Hong Kong being the dynamic ‘all-things-to-all-people’ type of place it is, oftentimes, certain life circumstances here throw up immigration challenges that need to be considered carefully to ensure that you do not inadvertently run afoul of the law and end up doing things that are no commensurate with your formal conditions of stay.
This question presents a number of issues for consideration.
QUESTION
I have been working in Hong Kong for the past five years under an employment visa and need today to apply for a student visa as I am no longer employed by my current sponsor-employer of record during my studies (full-time Masters Degree programme) starting in August 2013.
However, I have recently established a company in Hong Kong and have shares in this company.
At first blush, this question appears kind of complicated. But, as you’ll discover as I work my way through the answer for you, it’s actually quite a straightforward situation. It will require you making a particular application to adjust your status, but, all things considered, it is quite straightforward.
So presently you hold an employment visa, and as an employment visa holder, if you are no longer working for your current employer, then you’re allowed to remain in Hong Kong until your current limit of stay expires, whereupon you’re expected to leave. However, if you wish to join in a full time course of study, then you will have to adjust your immigration status from sponsored employment through to student visa.
On the other hand, if it was a part-time course of study as an employment visa holder, you could participate in that part-time course of study without needing to make any further application to the Immigration Department at this time. And in fact, the immigration department generally don’t issue student visas for part-time courses of study. Sometimes they do, but generally they don’t. So what you’re left with is adjusting your status from sponsored employment through to student, and the grant of the student visa should be straightforward. And the university will no doubt assist you to that end because it’s a kind of run of the mill process for them.
Now, getting to the meat and potatoes of your question, which is if you are presently holding shares in a Hong Kong company, will it preclude you from getting a student visa? Well, we need to take a step back in any event, and look at your ability to hold shares in a Hong Kong limited liability company while you’re an employment visa holder.
Now, in the current policy, it’s perfectly okay for you to make an investment into either a public company or you need a private company and hold shares, those vehicles, so long as you are not actively engaged in the management and direction of that business. So if effectively, what you’ve done is acquired the shares in the company, and then you started to do some trading, or you’re starting to effectively engage in proper business activity with a partner or by yourself, then you need to be aware that, in any event, you would have to make an application to the Immigration Department to join an assigned business that your current immigration status. And normally, if you’re an employment visa holder, this requires you to get the consent of your existing employer to do this. But given that you’re no longer working for your current employer, obviously you’re not in a position to go about making an application to join in a side businessformally. Therefore, what you’re left with is a dichotomy because you can’t be a full time student and engage and manage a business; at the same time, Immigration Department are principally not going to allow you to do that.
Therefore, effectively, my advice to you would be to put on hold your plans for your business or training activity and concentrate on your studies full time. And then when you come out of your studies you can pick up the pace on your formal business activities, if indeed that’s what you’re planning to do.
In that regard, when you finish your student status upon graduation, you’ll be able to make an application under the immigration arrangements for non-local graduates, which effectively mean that without having to procure an employer sponsor or indeed notify the Immigration Department in any express terms what it is that you’re doing in the wake of your formal graduation from your student status, as it were.
Effectively what you can do is then embark on your own business activity if that’s what you plan to do through the company that you own. And, all of that activity effectively will be allowed to occur within twelve months after you’re finishing your formal course of study.
So finish your student visa, get yourself an immigration arrangement for non-local graduates approval, that will then effectively, if I’ve done the mathematics right, give you about two and a half years from now, and that, as you can appreciate together with the five and a half years or so that you’ve been in Hong Kong five years as it were, is going to take you well past the seven year mark.
So when you are at the full seven years you can make an application for the right of abodeand all the time that you’ve spent as a student and indeed subsequently as a holder of an immigration arrangements non-local graduates visa, that will allow your continuous ordinary residence to be maintained at all times. So you’ll be able to adjust your status from temporary residence through to permanent residency and you’ll secure the right of abode.
So all things considered, you’re in pretty good shape, but what you need to be very mindful of is exactly what it is that you’re going to be doing in relation to the company that you hold shares in whilst you’re a student visa holder.
At the very, very least you need to make an application to the Immigration Department to get their permission to engage in any kind of business activity whilst you’re a student visa holder in relation to your own company. But my best advice is based on prior experience in this area, it’s just to put your head down, get on with your studies, adjust from student through to immigration arrangements for non-local graduates. No further recourse at that time to the Immigration Department for permissions to join in the business that you own shares of and, once you get to the seven year mark, you’ll be able to convert through to permanent residency.
And the issue of you holding shares in the company should never present itself as a problem. I hope that helps.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
This is a sad situation for a couple who find themselves in a maelstrom of immigration difficulties caused by a less than sensible choice some time previously.
QUESTION
I am a permanent resident in Hong Kong and am planning to marry my girlfriend. My girlfriend is in detention prior to removal. She’s from the Philippines. I wanted to get a sponsored dependant visa for her after we get married. The problem we have is that she is now under detention in Hong Kong under Immigration Ordinance section 32. Due to the borrowing of a passport to others to use. She have already signed a letter with the Immigration Department that she will not come back to Hong Kong and will soon need to go back to Philippines. What is the chance of me getting her back once we get married?
ANSWER
Yes, I can state that you find yourself in a very difficult situation here. The likelihood of you being able to persuade the Immigration Department that your relationship is bona fide and has merits in of itself, coupled with the problems associated with her manifestly poor immigration record under express undertakings that she will not seek to return to Hong Kong, it’s, in my opinion, that the likelihood of you being able to bring his young lady back to Hong Kong on the dependent visa sponsored by you is probably very slim indeed.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
In this short piece I discuss how the Hong Kong Immigration Department assess the bona fides of a sponsor seeking Hong Kong dependant visa permissions for his/her family to join him/her in the HKSAR.
Over the last 20 years or so I have coined a number of phrases in Hong Kong immigration parlance.
‘Roof-Over-Head-Food-On-Table’ describes a situation where, if you are seeking to sponsor a loved one in order to join you in Hong Kong as either a dependent visa holder or, in certain circumstances, a prolonged visitor visa holder, the sponsor that’s going to be supporting that application needs to be of sufficient financial means to be able to provide a home to the loved one under the visa permissions, and also to be able to take care of their emotional, educational and financial and sustenance needs.
So, in that regard, the Immigration Department are looking to see that the sponsor literally can put a roof over the head of their loved one and food on the table of their loved one, in addition to all the other stuff that I mentioned as well.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Is there a ‘minimum waiting time’ between a rejected Hong Kong employment visa application and then ‘trying again’?
QUESTION
I have a visa question, I got an offer from a recruitment company in July, they applied the working visa for me, but it got rejected by the end of August.
Now I have a new offer from another recruitment company, they will try to apply the visa for me, if they phrase my qualification better this time, is that possible to be approved?
Is it a good idea to apply again within 6 months?
Will my first, rejected Hong Kong employment visa application be a problem the second time around?
ANSWER
Thanks for your question. It’s an interesting topic that hasn’t really been raised in this guide before, so I appreciate you putting it forward to us for sharing on the blog.
There is no minimum waiting time between employment visa applications. The Immigration Department considers such applications on their own merits, and if you’ve been refused for one employer and you’re seeking to make another application, this time for an alternate employer, then the Immigration Department will consider, as I say, that second application entirely on its own merits, irrespective of what passed previously.
So, yes, you’re not going to be advantaged at all in any meaningful sense by, say, waiting for six months. So if you have a job offer and you’re eminently qualified for that job even though you’ve been refused previously, it doesn’t automatically follow that you should wait before your next application.
But I think the real question at play here is the reason why you were denied. From your question, it’s difficult to understand what the circumstances are that could have led to that refusal; it may be, for example, that because you don’t have a university degree, the Immigration Department don’t deem you to be a professional.
On the other hand, you may have a university degree, but you may not have at least two years post graduation working experience in the managerial or supervisory capacity. These are two good reasons for why you might have been denied the first time around. And, even if you make a second application with a new employer, those challenges will not be overcome. They still subsist and the Immigration department will not be deeming you as a professional, so you won’t get approved.
On the other hand, you may be a professional under the policy, but the Immigration Department may not like the sponsor, or they may not believe that the sponsor is a suitable and credible employer.
The sponsor may, for example, have a track record of securing employment visas for a very large number of expatriates with almost no local employment opportunities being created, and they may feel that the local workforce is not being potentially advantaged as a result of allowing an employer to continuously sponsor on an unlimited basis foreign nationals for employment visa permissions.
I’m just stabbing in the dark here, of course, because I don’t have any detailed information as to what the reasons might be. But in very general terms, the refusal could lie at your feet, it could lie at the feet of your old employer; and then when you take an application for a new employee to the Immigration Department, it may be that you’ll be successful; that time you could have been denied also on the grounds of compensation arrangements, not receiving the necessary minimums to be deemed a professional under the policy.
So lots of things in play that could impact on your initial application, and then you could find themselves still at play in your subsequent application. So, all things considered, no, don’t be restrained from making a subsequent application because you think your chances will be improved as a result of you waiting six months.
The Hong Kong Immigration Department offer ‘liberalised’ immigration arrangements for foreign nationals and mainland students who graduate from Hong Kong tertiary education institutes (“IANG”). If you have a job in Hong Kong one year after graduation, then the extension process is all but a rubber stamping exercise. But what if you wish to start a business investment instead?
First Published August 20, 2013, still of interest today
QUESTION
Hello Stephen,
I have already graduated in summer 2012, and now I stay in Hong Kong by “1 year IANG extension” visa, and I need to get a visa before December 2013 which I can stay in Hong Kong.
The situation is I want to start a service business in a unique niche not presently served in Hong Kong.
I have got to know how to set up a company here, and after I read your Hong Kong Visa Handbook, I have better understanding.
The Visa Handbook is useful.
Based on your knowledge, what is the minimum monetary injections/investment to the company that I can extend my visa in Hong Kong in December 2013?
In other words, what is number is safe?
I have heard a successful case that a Chinese young girl set up her business in Hong Kong by HKD1,000,000 after finished her master program and she have extended her visa in the name of her own company.
Second question is, there are only three months that allow me to set up my business, is it even more difficult?
Let’s assume that, hopefully, I will register my company and start my business in November, will Hong Kong immigration reject my extension easily in December 2013, for reasons like the company is just started, or there are only few documents and contracts to prove the company can contribute to Hong Kong economy?
I am eager to start my own business in Hong Kong, instead of working for a company.
I hope you can give me some suggestions, thank you.
ANSWER
If you have a period of stay in Hong Kong that was afforded to you by the Immigration Arrangements for Non-Local Graduates (IANG), and you’re seeking to have that limited stay extended on the strength that you have started your own business here, then in order to achieve that you need to pass the approvability test for a business investment visa, which is you need to show that you are in a position to make a substantial contribution to the economy of Hong Kong.
That, of course, requires you to have things in your business plan that includes the potential for the creation of local employment opportunities and also that you’re going to have suitable business premises and that the nature of your business can be said to benefit Hong Kong in some discernible and tangible way.
And, therefore,the nature of your business itself is as important as also having the ability to create local jobs and be homing the business in the correct fashion. But to turn to your question about what the minimum or magic number is from a cash perspective, well, the truth is that there isn’t a particular minimum and there isn’t a particular magic number. It depends on the business that you’re intending to establish, or indeed you have established and whether those funds are sufficient to give effect to that business plan. From your question, it appears that you know someone who was successful in this endeavour with a million HKD, and I would say that, that’s not surprising. I think a million HKD is quite a good amount of capital to have to give effect to any kind of reasonable business plan; but as for what would work in your situation, again, I’m reluctant to put any particular number on it because it really does depend on all of the circumstances. But it is fair to say that based on my experience, if you have less than, say, a quarter of a million or maybe HKD300,000, you may struggle persuading the Immigration Department that your business is properly financed in order for your plan to really give effect to the potential for you to make that substantial contribution.
In relation to the timing aspect in your question, if you are planning to start your business in November and then expect the Immigration Department to grant you an extension based on that business in December, I think you’ll be very hard pressed to allow the Immigration Department to approve you in those circumstances because getting a business investment visaapproved is one of the hardest challenges in Hong Kong Immigration.
Now, as a non-local graduate, you are afforded a certain kind of positive approach to such applications. But, the challenge of showing that you can make a substantial contribution to the economy of Hong Kong when you’re expecting the Immigration Department to consider that over the course of just a few short weeks, immediately prior to the expiry of your current limit of stay, is probably a little bit too much of an ask; so my strong advice is that if you’re going to do this, don’t wait until then but start now.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
