This post on how to apply for a Hong Kong investement visa without paying for professional help deals with the differences between work visa vs investment visa.
I have given this talk around town for the last couple of years now and so pleased to finally add it to our coverage of the Hong Kong investment visa, specifically discussing the distinction between an employment visa and an entrepreneur visa (Work Visavs Investment Visa).
The talk was graciously hosted at WYND Co-working Space, ran by a group of great people for whom I have a great deal of time.
So, what are the immigration implications of getting married and then having children in Hong Kong if you are a temporary resident presently holding an employment visa?
QUESTION
Hi,
Can you please help with a few questions?
1. I am getting married next month and would like to cancel my employment visa through my employer, and change to a dependent visa through my spouse. I would like to remain with the same employer. Is that possible? Would I still require an employment contract with my office (same employer) or would I no longer need an employment contract.
2. If we are married in the US and have a US marriage license, how do I register that in Hong Kong?
3. If two US citizens, living in Hong Kong on employment visas, have their baby in Hong Kong, is that baby now a Hong Kong citizen, or does his/her status follow the visa status of the parents?
ANSWER
If you are an employment visa holder in Hong Kong and you then subsequently find yourself married to another employment visa holder in Hong Kong, it’s perfectly possible and indeed reasonable to adjust your immigration status from sponsored employment visa through to a dependent visa now sponsored by your Hong Kong resident spouse. Therefore, you are able to, as you would say, cancel your employment visa and do make that application on a change of category basis to become a dependent visa holder.
Moreover, the interesting thing about that is that once you become a dependent visa holder now sponsored by your spouse, you’re actually lawfully employable with any particular employer without needing to consider the immigration implications of taking up an alternate employment. So yes, without a doubt that’s probably a very good idea.
In terms of the employment contract, one would assume that if you are continuing to work for the same employer then while you go through the process of adjusting your status from sponsored employment through to legal dependence there will be no disruption to your employment relationship with your employer and so whatever term of employment that you had in place with them will continue notwithstanding any adjustment in your immigration status underlying your ability to do that work in Hong Kong in the first place. So the question of an employment contract is really moot in this instance. It really just doesn’t raise its head because having an employment contract per se doesn’t involve any part of the dependent visa application process.
Now, insofar as having a US marriage licence and registering it in Hong Kong, my understanding is the marriage licence is really just the state’s official permission for you to get married in the United States. Insofar as the marriage that results from you executing that marriage licence and undergoing the ceremony, you will then get a marriage certificate and it’s the marriage certificate that is the requisite proof of legal marriage for the purposes of you going on to get a dependent visa in Hong Kong. So there’s no formal requirement to register any marriage licence. Effectively you go off the US, you get married, you bring your marriage certificate back to Hong Kong with you and that forms the anchor of your application for independent visa subsequently.
Turning finally to part three of your question – no, there is no concept such that if you’re a temporary resident in Hong Kong and your child is born here automatically that child becomes a permanent resident of Hong Kong or indeed a Chinese national by virtue of birth. In large part as you’ve identified the child will effectively follow the temporary resident status of its parents. So if you’re both here as one is an employment visa holder and the other is a sponsored dependent visa holder, then the child will then become sponsored as for a dependent visa by the employment visa holding parent and effectively that status will remain the same until the child has been continuously an ordinarily resident in Hong Kong for a full seven years. And thereafter you can apply to have the child’s eligibility for a permanent identity card issued to it once the child is over the age of eleven and securing the right of abode in the process becoming a permanent resident. So no, if you’re both still temporary residents while your child is born in Hong Kong, your child will by operation of the wall be a temporary resident at the point of a child being granted dependent visa sponsored by the employment visa holding parent. Okay, I hope you find that useful.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Despite the passing of more than eight years since the video’s release, the situation remains unchanged – there still is a maelstrom of false information that permeates the foreign national community in Hong Kong when it comes to matters of immigration.
This is because there is a lacuna of official guiding information coming from the Immigration Department as their role is to simply inform and decide, not to advise. Moreover, many people tend to follow a general scenario-based approach without realizing that each immigration case is unique. It is important to understand that your experience with an immigration application may not necessarily apply to someone else’s. Relying on hearsay and rumors can lead to misinformation, which is why it is crucial to avoid falling into the trap of what I call “Visa Gossip & Rumors.”
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
No way, for sure not – it simply is not the way the process works…
Your Hong Kong employment visa belongs to you, not your employer. They are just responsible for the sponsorship.
If the relationship with your employer sours for any reason and your employment terminates this is what happens to your visa:
– Your privilege to work ceases. You can no longer engage in any employment without making a new application to the HKID first.
– Your privilege to reside continues. The HKID will ordinarily allow you to remain in Hong Kong until your current limit of stay expires, whereupon you are required to leave Hong Kong.
In the meantime, this usually affords you the time you need to take stock of your affairs and get yourself back in the driving seat en route to a new employment in Hong Kong.
The HKID do not engage in any blame games as to why a sponsored employment has come to an end and only look forward not backwards
So don’t be intimidated by an errant employer who believes they have some kind of leverage over you as the sponsor of your employment visa.
The reality is, they have no such leverage whatsoever and you are a free agent for visa purposes and have nothing to worry about in this regard.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Although this case study is based on a situation I was asked to provide guidance to many years ago, its content is still relevant today.
Our client was a French national with a wife and 5 year old daughter – all of them, French citizens.
He had first arrived in Hong Kong in 2004 as a student to undertake an MBA programme at the University of Hong Kong.
Upon graduation in 2006, he joined a European investment bank where he worked continuously until 2010 when he was made redundant as part of the banking challenges associated with the GFC.
At the time he instructed us, he had an employment visa sponsored by his ex-employing investment bank with a 2 year period of stay endorsed inside his passport, taking him up just short of the complete 7 year time frame for the purposes of an application for the Right of Abode.
In 2010, with the chances of him gaining further employment in the investment banking game unlikely in the near term, our client decided to start a French wine importing business – but did not apply for an adjustment in his immigration status to allow him to be able to do this. He really needed an investment visa but had never bothered to get one.
As the period of stay availed by the investment bank expired 6 weeks before he would have been continuously resident for the 7 years needed for a Right of Abode application, he decided that he would take him family out of Hong Kong at the time his employment visa expired and bring them all back in as visitors, gaining a 90 day period of stay when they entered, waited six weeks, then submitted an application for the Right of Abode.
This was in 2011, 2 weeks before he asked for our help.
At the time of his application, he didn’t realise that you can’t apply for the Right of Abode if you have a visitor visa.
You need to be ‘resident’ at the time you apply. Instead he and his family were ‘visiting’.
The Hong Kong Immigration Department knocked back his application for permanent residency on this ground and so he found his way to us.
The key issues in this application were:
1 – the fact of his visitor visa status at the time he applied for the Right of Abode.
2 – the 11 months he had been working his French wine import business, unapproved by the Hong Kong Immigration authorities.
3 – as a prior student from HKU he could take advantage as a ‘returning graduate‘ and be afforded ‘positive consideration’ for any application that he might make in order to take up a new job in Hong Kong (for which he’d need an offer of employment from a suitably qualified sponsor).
Coincidentally, just after our client approached us for advice, an ex-colleague of his from the investment bank where he had worked for four years previously, asked him to come and consult on an energy project in the Philippines.
This ex-colleague had, three years prior, provided consulting services through his own, newly established one-man company and had turned over HKD10 million in consulting fees in the first 18 months. However, the project had come to a temporary halt, as these things often do, as certain government approvals processes played themselves out.
The project has been in a temporary hiatus but had, just recently, been reactivated in light of the Philippines government providing whatever consents had been necessary for it to progress to the next phase.
Consequently, and somewhat out of the blue, our client received an offer of employment from his ex-colleague for him to assist him in the next phase of the energy project.
This was good news on the one hand, but on the other, the employing business was still very much a ‘brass plaque’ consulting concern which had been effectively dormant for the last 18 months.
On the plus side, it had a strong balance sheet and also had a receipt from the Hong Kong Inland Revenue for more than HKD1 million it had paid in profits tax the year before. It also had a formal notification from its sole client that the energy project was now recommencing and thus was manifestly ready to re-engage in providing services once more.
We advised our client that this could be a heaven sent opportunity for us to secure an employment visa for him (with dependent visas for his wife and daughter) relying on the relaxed application consideration criteria which the Hong Kong Immigration Department afford to non local graduates of Hong Kong Universities.
We did, on the other hand, counsel that as the sponsoring employer was pretty much still a shell of an operation, there would be some tussling with the Immigration Department to persuade them of its bona fides as a quality employment visa sponsor.
As expected, we locked horns with the Department about the quality of the sponsor and had several exchanges with them each time providing them with more information, proof of the good prospects for the business and the critical role our client was going to be playing in its operations.
Finally, we suggested to the HKID that they approve our client’s employment visa subject to Business Review at the end of 12 months, a not unusual proposition, but suitable in the circumstances. The Hong Kong Immigration Department agreed and our client and his family’s applications were duly approved subject to this condition.
As the strategy all along had been to provide our client with a residence visa for the purposes of his Right of Abode application, the fact of this Business Review was ultimately unimportant because it would only come into play if our client applied for an extension to his new employment visa 12 months down the road.
In fact, two months after this, their Right of Abode applications were approved and so Business Review was never an issue. The really good news is that this client is now providing consulting services to the energy project AND running his French wine importing business quite lawfully as a permanent resident.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
One of the more upsetting parts of being a Hong Kong immigration consultant is learning that one family member alone, due to an unfortunate combination of circumstances, finds herself the odd one out by not having been able to correctly manage her visa status here – and all, essentially, through no fault of her own.
QUESTION
“Hi, My mother married a Hong Kong-Chinese national (step father) and sponsored my stay in Hong Kong to study when I was a child. I stayed and grew up in Hong Kong for more than six years and was holding unconditional stay status. My parents opted to send me to Malaysia to finish my secondary school up to tertiary school. I was not able to come back within one year of leaving Hong Kong. Before I reached 18, my mother reapplied me for sponsorship, the immigration delayed the response for my application and when I ultimately reached my 18th birthday, then they informed me I was too old. I came back to Hong Kong four years after my departure and I was forced to be a Visitor.
I have heard some people with the same case as mine (departing Hong Kong for an extended amount of time for studies) and where able to keep their residence status because they were STUDYING when away. I really want to be reunified with my family even though it was more than ten years when I first left Hong Kong. Among my mother, father and two siblings I am the only one not holding a valid I.D. card because of this.
Any thoughts?”
ANSWER
This is a particularly vexing issue for the person who’s lost her unconditional stay status because unfortunately it has meant the de facto segregation of her from the rest of her family members which is a great shame in actual fact, and I really feel for her.
The issue really boils down on to the fact that once you get unconditional stay status, effectively you have to meet the single condition of that stay which is that you have to make a physical entry into Hong Kong on at least one occasion in any given twelve-month period of stay, and if you don’t make that single entry into Hong Kong in those twelve months the status of unconditional stay is relinquished by operation of law, and that’s effectively what has happened to cause this problem in the first place. Moreover, as we can read also, the problem is further compounded by the fact that this lady was approaching her 18th birthday, although it’s not exactly clear how far in advance of her 18th birthday the application was made, but her mother made an application for a dependent visa for her, and it would appear that by the time the dependent visa application was finalised by the Immigration Department, she’d crossed the 18th year and she was no longer eligible for dependent visa. Consequently, the only immigration status that she has available to her is a visitor visa. That must feel terrible each time you come back to Hong Kong and know that all of your family members are complete residents and you are just here as a mere visitor.
As I say, the problem stands from the fact that unconditional stay is a simple, hard and fast rule – one entry every twelve months, as is the dependent visa. Once you get to the age of 18, irrespective of the circumstances that surrounded the actual application itself, you’re no longer eligible for a dependent visa. That’s kind of in a sense, the bad news. I do have a little bit of good news which, I’ll share with you subsequently, but for the moment I’d just like to address the issue about these other circumstances that you’ve heard of where people who have departed Hong Kong for an extended period of time in order to study but have kept their residence status as a result of them studying. I suspect that what you have heard here is a slightly different situation. It would relate to those people, particularly of a younger age, who have had residence visas endorsed in their passports and they’ve then subsequently gone on to make an application for a permanent identity card, and even though they’ve spent a great deal of time outside of Hong Kong whilst they were holding residence visas, the fact that they were studying abroad didn’t actually break their continuity of residence for the purposes of getting approved under the Right of Abode which requires continuous ordinary residence for a period of not less than seven years. Because any time that they would have spent outside of Hong Kong studying would have been done on the basis that each time they made an exit to go continue their studies overseas, they were departing on a merely temporary basis only, and consequently they subsequently returned to Hong Kong and had their residence status still valid inside the passports, reflecting the fact that they did have the continuing connection to Hong Kong even though they were temporarily studying overseas. Thus, I suspect that you can probably differentiate those cases from your particular circumstances, which, as I say, is really driven by the fact that you lost unconditional stay and you’d end in qualify for a dependent visa because of timing issues.
Sad said of, but all’s not lost. My experience suggests that the Hong Kong Immigration Department will take your personal circumstances very much into account. If you can get a job offer and then make an application for an employment visa, which would be in a sense, your new rationale for remaining in Hong Kong because presently the Immigration Department don’t have any circumstances that will allow them to apply existing immigration rules and regulations to your circumstances to give you the opportunity to be together with your family. That is, there’s only the visitor visa that’s out there for you. However, if you can procure a job offer and get a sponsored employment moving in your favour, I think you’ll find that the Immigration Department will take the extenuating circumstances of your family situation into account. And so long as you’ve got an employment visa sponsor in hand, you stand a really good chance of being approved for an employment visa under liberalised consideration criteria.
So I would suggest that you get yourself a job offer, make an employment visa application to the Immigration Department and, as part of your application, reveal everything that you revealed to us in your question today, and I’m 99.99% confident that the Immigration Department will grant you a visa as a result of your personal circumstances.
All the very best.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
This article presents solutions to missing periods of residence when it comes about a Hong Kong Right of Abode Application
The essential approvability test for a Hong Kong Right of Abode application is that you have been continuously and ordinarily resident in the HKSAR for a period of not less than 7 years AND that you have taken concrete steps towards making Hong Kong your ONLY place of permanent residence.
“Continuously”, for the purposes of the test, effectively means that any absences from Hong Kong during that time were temporary and lasted less than 6 months.
Moreover, at the time you departed it must have been your intention to be absent temporarily only – as evidenced by what you leave behind in Hong Kong to return back to at the end of your temporary sojourn abroad.
The application form ROP 145specifically asks for details, with reasons, in respect of any absences of more than 6 months, otherwise the Hong Kong Immigration Department do not expressly raise the issue – unless it is obvious, that you have indeed spent a great deal of time continuously outside of Hong Kong during the requisite 7 years.
And the collection of documents you submit in support of your application should effectively envelope any missing periods of residence and should consist of Hong Kong tax returns, proof of accommodation, official bills, employment confirmations and, ideally, your Statement of Travel Records for the entire time you have lived in Hong Kong.
Oh, and you need to ensure that you have no outstanding taxation liabilities here as well – otherwise, your case will simply not be approved!
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Message the Visa Geeza
