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 The Company You Have Just Left Contact Hong Kong Immigration And Make Your Visa Expire Immediately?

Posted by The Visa Geeza / in Employment Visas, Special Programmes, Your Question Answered / 14 responses

Contact Hong Kong Immigration and make your visa expire? This question comes up often enough for it to warrant another explanation of the arrangements which prevail (current ImmD practice)…

QUESTION

Dear Visa Geeza,

 I’m under the impression that when you leave a company that has been sponsoring your employment visa or if you are fired, that as long as your visa hasn’t expired you are allowed to stay in Hong Kong and look for new employment.

Can the company you have just left contact immigration and make your visa expire immediately so you therefore lose the right to stay in Hong Kong and look for work? 

ANSWER

This scenario is very much an old chestnut; so, I’d like to take this opportunity to hopefully sort of bury it once and for all time. Effectively, when you secure an employment visa sponsored by a Hong Kong employer, you get two privileges: (1) you get the privilege to do the work – that’s nominated in the employment contract for the sponsor of record, and (2) you also get the privilege to reside – that flows naturally from the privilege to work.

When you stop working for your current employer, your privilege to work ceases, but your privilege to reside continues until your current limit of stay expires, or the Immigration Department remove it from you, whichever is the sooner it is; in fact, the Immigration departments standard practise to allow the current limit of stay to expire where there has been a situation such as yours, and therefore you will be allowed to remain in Hong Kong to carry on your lives until your current limit of stay expires, whereupon you’re expected to leave.

Additionally, it is considered a ‘permitted activity’ under your continuing privilege to reside to look for and indeed interview for work. However, it is not ‘permitted activity’ to take up that employment. Therefore, prior to joining in a new company (sponsor) in Hong Kong, you will have to make an application to change your sponsorship so that the Immigration department can apply the approvability test in the context of the new job offer that you’ve got in hand and will then, once applying that approvability test, determine whether you should be able to take up that employment and in the process re-invoking your privileges to work for that new employer. So that’s how all of that works.

In terms of an ex-employer contacting the Immigration Department and ask that your privilege to reside in Hong Kong be suddenly be immediately revoked, the Immigration Department tend not to get involved in issues associated with reasons as to why an employment might have come to an end.

In other words, an employer does have an obligation to inform the Immigration Department of material change in circumstances as regards their sponsorship charges – and so normally an employer will write to the Immigration Department to advise them of the official date of employment termination (and the Immigration Department just hold that on file and the termination date of your prior employment becomes a matter of your record), but the employer cannot sort of overreaching themselves and saying that you should not be allowed to remain in Hong Kong for reasons such as  you having not have done your job well or any of this kind. The Immigration Department won’t take on board any of that, as they just look at the circumstances dispassionately and will just reflect the fact of your cessation of employment with that sponsor, rather than taking any steps towards, in a sense, punishing you for what might have passed during your prior employment, and not making it possible for you to make an honest application to change your sponsorship and continue your lives in Hong Kong on the basis that you’ll be able to get that change of sponsorship application approved.

In a nutshell, the answer to your question is: an employer can’t effectively kick you out of Hong Kong just because they happen to be your employment visa sponsor of record.

I hope you find this useful.

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QOTW: Dependancy? Visas For Mainland Spouses Of Hong Kong Permanent Residents

Posted by The Visa Geeza / in Family Visas, Long Stay & PR, Your Question Answered / No responses

The vexed question of dependant visas for mainland spouses of Hong Kong permanent residents

QUESTION  OF  THE  WEEK

I am a Hong Kong  PR (Canadian, been in Hong Kong for 9 years now working as a CPA) and recently married a PRC resident, who is a senior manager in a bank in Shanghai. What kind of visa can I get for my wife that would enable her to live with me in Hong Kong without stay limit, get a HKID card and seek employment.  I note that the published information indicates the dependant spouse approach is not applicable to PRC residents. She does not want to give up her PRC resident status.

ANSWER

Normally, when a foreign national resident of Hong Kong is seeking to secure dependent visa permission for his Chinese spouse, an application for dependent visa is made in the normal way; however, this anticipates that the applicant spouse sponsor is a temporary resident of Hong Kong not a permanent resident, because under a wider immigration policy that restricts certain classes of people to come to Hong Kong from China, essentially spouses of permanent residents of Hong Kong who are mainland Chinese can’t get dependent visas; instead, they have to apply for one-way permit which means that they go on a waiting list of many years standing and it isn’t a particular practical way for families to be reunited. So this actual rule applies to foreign national permanent residents of Hong Kong and a lonely Chinese permanent residence of Hong Kong and so wherever you have a situation that you have a permanent resident of Hong Kong who is married to a PRC spouse, the dependent visa is unavailable; therefore, you’ve got to look to other possible solutions of being able to reside in Hong Kong together, notwithstanding the fact that you cannot get a dependent visa.

One way to do this is to become a student particularly if there is a master’s degree program that’s suitable for an existing bachelor degree holder spouse, because they could participate in that program for just one year, graduate from that Hong Kong University, and they would then be able to get an automatic no-questions-asked working visa for at least 12 months thereafter under the immigration arrangements for non-local graduates (IANG), and that gives you a very simple and straightforward pathway to be able to secure a residence status through the study route.

Another way to do it is to secure a job offer from a Hong Kong company that is well- established and then make an application for employment visa under the admission of mainland talents and professional scheme and essentially in that instance the spouse would have to be very well qualified, have a good educational background, and posses special skills, knowledge and experience of value to and not readily available in Hong Kong and in those circumstances immigration would approve that application and then you’d be able to live together in Hong Kong with your spouse having an employment visa instead of a dependent visa in this instance.

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How & Why Hong Kong Seeks To Attract Foreign National Talent

Posted by The Visa Geeza / in Employment Visas, Family Visas, Investment Visas, Long Stay & PR, Musing, Special Programmes / 6 responses

How & Why Hong Kong Seeks To Attract Foreign National Talent

Globalization has led to a seemingly endless trend of migration of people around the world.

This includes the international movement of highly skilled workers, including specialists, researchers, business executives, managers and inter-company transferees.

Much of the motivation on the part of these professionals is the allure of the economic opportunities abroad that are greater than those available in their home countries.

As a result of this migration dynamic, the countries on the receiving end of the movement of these people experience the benefits of innovation stimulation, a greater pool of skilled human capital and the exchange of intellectual dynamism. These migrants also bring new money into the country with them.

Consequently, the national immigration agencies of developed economies find themselves in a battle to attract talent to their shores and have implemented migration programmes which facilitate the admission of these skills into their countries.

This includes making it much easier for foreign students to remain behind upon the completion of their formal education and take up employment or establishes or join in businesses.

Hong Kong is no exception. In the 2003 Report of the Task Force on Population it was stated that “Hong Kong must have the capacity to draw on the best and the brightest in the region and world-wide, including the populous and fast-developing Mainland”.

In the Chief Executive’s 2005 Policy Address, Mr Donald Tsang made it very clear:

“Like other world cities, Hong Kong must attract talent from around the world… the larger the pool of talent, the easier it is for a place to attract investment, thereby promoting economic development and increasing employment”.

This notwithstanding, Hong Kong has a number of “pull factors” which work to entice the highly skilled, well educated and consummately professional to live and settle in the HKSAR.

These include excellent employment opportunities, good pay, a low tax rate and relatively simple and efficient visa application procedures.

Geography, climate and cuisine also play a part too!

Moreover, Hong Kong has world class telecommunications, easy travel, excellent security and long-established racial tolerance.

Admission of highly skilled immigrants has always been part of the fabric of Hong Kong society.

Whilst the dynamic towards Mainland talent has, obviously, developed positively since 1997 under the One Country, Two Systems arrangements of the 1984 Sino-British Joint Declaration, the immigration policy on entry for employment of foreign professionals, which is known as the General Employment Policy, has been in place for more than half a century.

Employment visas are issued to professionals “who possess special skills, knowledge, or experience of value to and not readily available in Hong Kong”. Investment visas are issued to those who are in a position to make a “substantial contribution to the economy of Hong Kong”. “Quality Migrants” and “Mainland Talents and Professionals” each have their own immigration programmes designed specifically with them in mind. Moreover, anyone graduating from a Hong Kong tertiary education institute is now effectively granted an employment visa post graduation almost as ‘of right’ under the “Immigration Arrangements for Non-Local Graduates“.

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