Do the Hong Kong Immigration Department expect every foreign national employee of Hong Kong registered companies to have employment visas even if they have never worked (or never will work) in the HKSAR?
QUESTION
Is there any problem with a Hong Kong registered company employing someone currently resident in Malaysia for a role supporting one of our clients offices in Malaysia?
I don’t think a Hong Kong employment visa is required because he won’t work here and in the short term at least he can work in Malaysia on a visitor visa as long as he is employed offshore.
ANSWER
Insofar as employment visa permissions for Hong Kong it’s very straightforward. The law says that any foreign national who intends to take up employment in Hong Kong, paid or unpaid, needs the permission of the director of immigration, which means that you need to have an employment visa for all practical purposes.
If a Hong Kong company on the other hand is planning to deploy staff into another jurisdiction to work in that jurisdiction, then it’s really the law of that jurisdiction that comes into play rather than the law of Hong Kong. If the employee is not going to be taking up employment in Hong Kong, no employment visa is needed, but if he goes to Malaysia and malaysian immigration law demands that he has an employment visa, then clearly he’s going to have to get an employment visa there and comply with the terms of malaysian immigration law. Now, I’m not entirely sure what malaysian law says about these things because it’s not my jurisdiction but I have a sneaking suspicion that they probably would have something to say about foreign national working on their soil without the requisite permission.
So it’s worthwhile really looking into that closely and not take anything for granted as such because there may be implications for the Hong Kong company who’s doing the deployment into Malaysia, and it could end up being that Hong Kong company gets itself in hot water with the malaysian immigration authorities that could come back to haunt you.
So, insofar as Hong Kong goes now, don’t have to worry about it. But I’d urge you to check out carefully the requisite immigration laws in Malaysia to make sure that you’re not inadvertently falling foul of the way that immigration in Malaysia is practised to. Okay, all the very best with this.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Freelance writers & reporters in Hong Kong are often faced with a round-pegs-in-square-holes visa situation that is not easily resolved.
This post attempts to deal with the challenge of visa approvability for these people and shed some light on what is actually do-able from an immigration perspective.
QUESTION
I am currently a full-time reporter in Hong Kong, I have a work visa. I plan to resign soon for various reasons and would like to stay in Hong Kong and be based here as a freelancer.
Once I resign, what happens to my current work visa?
Can I stay until it expires? I read that I could, but that I could not work until I get a new one, is that correct?
I read also that I would need to create my own business in order to sponsor myself; is that a difficult process?
What kind of documents do I need to show to the Immigration Department, does it take a long time to get a reply and what is the success rate?
Thanks a lot for your help!
ANSWER
The question of suitable immigration status for freelancer writers & reporters in Hong Kong is a bit of a torrid one. It is very much a round pegs in square hole situation because without an employment contract in place there is no opportunity to be an employee, therefore an employment visa holder.
So the only other immigration status that is available to such freelance writers & reporters is the business investment visa. And the approvability test for business investment visa calls for demonstration that the applicant is in a position to make a substantial contribution to the economy of Hong Kong. And by definition the substantiality aspect of the approvability test is never satisfied where you’ve got a freelancer because for all practical purposes we’re talking about a one-man business.
Therefore a little bit of fancy footwork is always required when trying to secure the immigration department’s permission to be a freelancer in Hong Kong. And in this regard you very much need to make a business case. In my experience the process for securing a business investment visa, whether you’re a one-man business, or whether you’re going to ultimately be a bigger business than just that which is regularly reflected in a freelancer situation is that you make your application for a business investment visa as though you’re going to be bigger than potentially just a one-man band.
Recognising that even if your application is quite weak, the immigration department could approve you subject to business review at the end of the first twelve months. And in this regard they’re going to have a look to see if your activities can be said to be making a substantial contribution to the economy of Hong Kong.
So yeah, like I said, round pegs, square holes. I’ve detailed on this post effectively all the resources that you need to drill down on to learn what’s required to get yourself a business investment visa, including other documents that are required. To that end you’re going to need a sponsor for your application and that can be any permanent identity card holder who’s acquainted with you and in respect of your question about what happens to you once you resign, that is, to your current work visa.
The employment visa that you have at the moment comes with two privileges. The first privilege is for you to carry on the employment that you’re doing for your current employer, and the second privilege is your privilege to reside, which flows naturally from the privilege to work because you need to be allowed to live in Hong Kong in order to do the work that you’ve been authorised to do.
So once you stop working for your existing employer, your privilege to reside continues, but your privilege to work ceases and thereafter you’re not entitled to join in a business, establish a business, or work for anybody else without going back to the immigration department and getting their approval in advance of you taking up that new activity.
So your privilege to reside will continue until either the immigration department take it away from you, which they never do. They usually allow you the ability to continue to remain in Hong Kong to put in place the necessary bits and pieces that you need to move forward with the next stage of your life or until your current period of stay expires, whereupon you won’t be entitled to an extension because you don’t have the necessary conditions in play for the Immigration Department to give you one, and you’d be expected to leave Hong Kong when your current visa expires.
How long does it take to get a reply? Well, for all practical purposes, you’re looking at a two to four month timeframe for an investment visa approval. And the success rate? Well, that’s an interesting one, actually, because there are between 254 hundred approvals under this visa category issued each year, but there are about 250 applications received by the department each month. So when you net it out, it’s approximately a 15% chance of success. Now, that’s not to say that you won’t be successful in your application. It just goes to show that the Immigration Department systems are set up so that all comers are encouraged to make applications, but only the best cases ever get approved.
In terms of improving your chances of success, the longer you’ve spent in Hong Kong, the more likely it is the Immigration Department are going to buy into the idea that you’re going to be able to make a substantial contribution, particularly if you can show that in your industry, a large number of people that do the work that you do don’t do it under a formal sponsored employment visa type situation.
Because actually, the number of, for example, journalists in Hong Kong who would be full time employed on an employment contract sponsored by a publication, there’s probably not that many, all things considered, and is probably getting less and less with the state of print publishing these days.
So the departments are quite cognizant of the fact that the way that writers earn their living tends to sort of border on the freelance. But as I say, unfortunately, the approvability test for the visa category that’s available to you shows that you need to be in a position to make a substantial contribution, and that really then puts you sort of alongside all the other business investment. These are applicants who have to show that they’ve got resources and who have to show that the work that they do is going to ultimately result in a solidly entrenched commercial enterprise, because that’s the final outcome for an investment visa approval.
So, all things considered, the longer you’ve been here, the more likely it is that you’re going to get approved. You’re going to have to dress up your application in such a way as to address the issues that are detailed as being required to pass the approvability test.
That is all the information that’s in the resources appended to this post. It’s going to take you, as I say, two to four months to complete, and your chance of success is improved by the amount of time that you’ve been in Hong Kong, the closer you get to seven years.
Generally speaking the easier the immigration department are in applying the approvability test to freelancers. So, go for it. I wish you all the very best in that exercise, too.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
Hong Kong Unconditional Stay Status? 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 as you can read from the question unfortunately it is 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 to the fact that once you get unconditional stay status effectively you have to meet the single condition of that stay, which is you have to make a physical entry into Hong Kong on at least one occasion in any given 12-month period of stay and if you don’t make that single entry into Hong Kong in those 12 months, the status of unconditional stay rue is relinquished by operation of law and that’s effectively what has happened to cause this problem in the first place.
And as we can read also the problems further compounded by the fact that as this lady was approaching her 18th birthday, although it’s not exactly clear how far in advance of our 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 application was finalized by the department she’d crossed the 18th year boundary as it were into her birthday and she was no longer eligible for a dependent visa.
So consequently, the only immigration status that she has available to her is a visitor visa. Well 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’re just here as a mere visitor but as I say the problem stems from the fact that unconditional stays is simple and hard and fast rule: one entry over 12 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. So 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 a period of time in order to study but have kept their resident status as a result of them studying. I suspect that what you have heard here is a slightly different situation.
It will relate to those people particularly the younger age who have had residence visas endorsing their passports and are 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 and the fact that they were studying abroad didn’t actually break their continuity of residence for the purposes of getting approved under ??the riot of a bowl?? which requires continuous boarding residents of 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 do have the continuing connection to Hong Kong even though they were temporarily studying overseas.
So, 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 then didn’t qualify for a dependent visa because of the timing issues.
Sad state of affairs but all’s not lost! You see 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 before them 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 normally a visitor visa that that’s out there for you. However, you can procure a job offer and get sponsored employment moving in your favor. 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 liberalized consideration criteria.
So, I would suggest get yourself a job offer, make an application to the department, as part of your application reveal everything that you reveal to us on your question today and I’m 99.999% confident that the Immigration Department will grant your visa as a result of your personal circumstances. All the very best.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
The question of right of abode for Foreign Domestic Helpers in Hong Kong is a wound that continues to bleed…
QUESTION
If a Philippine domestic helper has been in Hong Kong continuously for 30 years can she obtain permanent residency after marrying a foreign (British) permanent resident?
If not, can she remain in Hong Kong under any other visa category?
ANSWER
It’s now abundantly clear under the law in Hong Kong that any time spent in Hong Kong as a Foreign Domestic Helper (FDH) will not count towards ordinary residency for the purpose of a Right of Abode application. So in this instance, if you marry a foreign domestic helper as a permanent identity card holder yourself, and then you wish to live your lives in Hong Kong, then she must adjust her immigration status from foreign domestic helper through to dependent, which the Immigration Department will be happy to do.
And then after she has held a dependent visa for seven years, in her own right, she will then be able to make an application for the Right of Abode and will be able to adjust her status accordingly. So even though she’s had 30 years in Hong Kong previously as a foreign domestic helper, unfortunately, those 30 years don’t count for anything.
She’s going to have to adjust the status through to dependent after marriage, and then, after seven years of holding the dependent visa, make an application for the Rights of Abode. Okay, I hope you found that useful.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
I’m an Australian and British citizen currently living in Australia and I want to found a technology Startup company in Hong Kong because the government incentives seem very attractive to do so.
The downside is that housing is ultra-expensive in Hong Kong and paying this will deplete my resources far quicker than I’d like, effectively nullifying any government incentives and then some!
Is it possible to live over the border in Shenzhen, travel into Hong Kong everyday for work, still be employed by my Hong Kong company and take advantage of all the benefits that are bestowed on it?
I’m likely to be doing significant business with the mainland, so need an option that allows me the flexibility to cross the border often without too much impediment while staying on the right side of the law!
ANSWER
Great question and I am very grateful for you asking it. And I have to say there are a lot of moving parts and I’m not certain by the time I get to the end of this answer, you’ll be particularly enamoured with the answer. However, effectively, you have got two challenges.
Firstly, you need to be lawfully employable in your own business in Hong Kong – that’s challenge number one. And then secondly, you need to, once that’s out of the way, independently go and secure permissions to live in China. Now, I’m not an expert by any means, in China immigration, so I don’t have any value to add in respect of how you might go about gaining lawful residency in China. You’ll need to speak to a Chinese immigration practitioner in relation to that, but kicking off with your need to be lawfully employable in your own business in Hong Kong, you’ll need to do this for two really good reasons. One commercial and one legal. You absolutely need to be compliant with Hong Kong immigration law if you intend to establish a new business in Hong Kong.
And therefore you’ll have to make an application for a business investment visa, because that’s the immigration status that applies in your circumstances. And running aligned with that is your stated intention to seek to take advantage of government incentives. I don’t have any comment on how generous the incentives in the startup scene actually are, in fact; but I do believe, and understand that, if you are going to participate, or seek to participate in such schemes, there will be an expectation that you are in possession of the correct immigration status to be able to do so. So that does firmly put you in the hands of the business investment visa, which I’ve dealt with ad nauseam elsewhere on the site, so I don’t propose to go into the detail of that for your question.
So, effectively, once you have been able to pass the approvability test for an investment visa, you turn your attention to China, as I’ve said. And, once you’ve been able to turn your attention to China and you get the permissions there that you need, the third and the penultimate challenge will be the daily grind across the boundary as you commute.
It’s certainly doable and lots of people do every single day; it’s not something that I would have particularly be looking forward to, but then again, having never lived in China, there may be charms of China that make it all worthwhile, notwithstanding the daily shuttle across the border.
So, effectively, once you have secured both your investment visa for Hong Kong and also your residence permissions in China, and you’ve grasped the nettle of the the Shenzhen shuttle, as it were, the next thing that you’ll have to sort of anticipate in all of this is what happens come the time of your extension application for your first investment visa extension, which comes twelve months after the initial grant.
It’s perfectly okay to spend a lot of time in China. Of course, many, many people do, as I’ve said, they work in Hong Kong, or indeed they live in Hong Kong and work in China, and it isn’t unusual for people who are ostensibly based in Hong Kong to spend a lot of time in China.
So the Immigration Department, at the time that they extend your investment visa, they may look to see why you’ve spent so much time in China. That is, at least why you’ve spent so much time outside of Hong Kong. It may or may not present itself as an issue, but the reason why I raise it is that there are two privileges that go with an investment visa: the first privilege is to actually join in the business, and the second privilege is the privilege to reside. And you may be getting down into a bit of a rabbit hole if you say to the Immigration Department that, well, yeah, you work in Hong Kong, but you live in China; I don’t know what their response to that reality might be in terms of their ongoing willingness to grant you an extension to your investment visa, because the implication, in my experience, is that you both live and work in Hong Kong. But given that you are seeking specifically to live in China, yet work in Hong Kong, it seems to me that only 50% of the criteria for the grant of the visa are present in your case, that is, the need to join in your business in Hong Kong. And the fact that you’ve chosen to live in China is a bit of an open question for me.
So I’m not quite sure what the Immigration Department would make of it, but there you go, as I say, lots of moving parts. Great question, perfectly reasonable question. I understand, you know, your thinking behind all of this, but I hope you found these particular elements of the answer in the discrete or collective ways useful to you.
Okay, all the best.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
This article deals with the option for an applicant to check online their visa application status.
If you’ve made an application for a residence visa here, the Hong Kong Immigration Department provide you with a website URL and login credentials so that you can ‘track’ the progress of your case as it travels its way through the visa labyrinth that is the Immigration Tower.
So goes the theory anyway.
In fact, the experience is a lot more sombre than that.
The journey begins with the Official Receipt for your application which arrives via mail between 7-10 days after you have filed your application.
This snail mail communication invites you to go the online application status check page which, once visited, takes you through a couple of other pages/disclaimer options before you get to the meat and potatoes of the experience.
Then you input your official Reference Number.
Then the date of birth of the applicant.
The Eldorado that awaits you is one of three status updates:
In progress (= wait some more, we’re still working on it).
Approved (= congratulations and welcome to the wonderful world of Hong Kong residency).
Application closed (= your application has been approved and you’ve already collected your visa label OR you’ve been refused – for one reason or another – but we haven’t got around to informing you yet).
Of course, this is about all you might expect of this process. It is the government after all.
But given that approvals tend to be faxed out the same day they are finalised, the only 2 things you can expect to learn from the system is that ImmD are still working on the file (which you already knew anyway) or that a visa is not coming your way after all (a bit of shock, no doubt – a bit like learning a loved one has died in a ski-ing accident when you turn on the news).
In fact, this post was prompted by an email exchange I had with a visitor to this Blog just last weekend.
Questioner
“I have checked the application status. Previously it showed as “In progress”. Now it is showing as “Application closed”. Can you tell me what does it mean? Please respond to it ASAP.”
Me It means the case is either cancelled by ImmD due to lack of response on the part of the applicant, or it has been refused. It does not mean it is approved (unless you have already collected your visa label but in that case you wouldn’t be posing this question of course…).
Questioner
“I have applied for a Hong Kong long term business visa but it was refused. Can I reapply for the same as it is very important for me to travel. My company is applying on behalf of me where I am going to be working.”
Me
You need to apply for a Reconsideration. More information here. Good luck in your appeal.
This happened on a Saturday so this poor soul had his weekend ruined by the system.
Of course, he was destined to learn the outcome one way or t’other but you can’t but help conclude from the way that the online status check system is designed that the rationale for this ‘service’ is just to keep applicants from calling their Case Officers to find out if there’s any progress on their cases.
In fact, we hardly ever use the online status update service.
It’s barely any use at all and not worth the time it takes to log-in.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
The Right of Abode in Hong Kong is not (solely) based on the length of employment with a single employer. This entitlement is primarily determined by factors such as continuous ordinary residence in Hong Kong for a period of not less than 7 years and other specific eligibility criteria set by the Hong Kong Immigration Department.
First Published July 20, 2012, still relevant today
7 years to get the Right of Abode in Hong Kong without changing employers in that time? To secure permanent residency in the HKSAR, you need to make an application for the Right of Abode. The Right of Abode, once granted, is manifested in the issue to you of a Permanent Hong Kong Identity Card.
So, you make an application for a Permanent Identity Card, once approved get the Right of Abode and in the process become a permanent resident of the HKSAR.
Under the Basic Law, the test for approvability for the Right of Abode is as follows:
(a) You must have been continuously and ordinarily resident in the HKSAR for not less than 7 years.
(b) Any absences outside of Hong Kong in that time must have been of a merely temporary nature (as evidenced by your intent at the time you made each departure and what you left behind to return back to after each temporary period of time spent abroad).
(c) You must have taken concrete steps towards making Hong Kong your only place of permanent residence.
(d) There must be no security objection.
(e) You must have no outstanding taxation liabilities.
Consequently, the answer to the question posed hinges on whether changing employers during the requisite time frame is activity which could be said to be ‘ordinary’ in the context of 7 years continuous residence.
And, of course, the answer is yes.
People change jobs and careers all the time in the ordinary course of their lives in Hong Kong. They also get married, divorced, have children, lose family members, start (and close down) their own businesses and go on to rejoin the workforce.
All of this is deemed ‘ordinary’ for the purposes of the approvability test for a Permanent Identity Card. None of these things impact on permanent residence eligibility.
The real concern, however, is if you:
(1) Spend more than 6 months outside of Hong Kong in any given year whilst holding a residence visa, or
(2) Have a lengthy and significant break in your residence visa status during the 7 years.
Both of these can conspire to defeat your eligibility for the Right of Abode and will require careful planning if you are able to anticipate them in the expectation of becoming a Permanent Resident in due course.
With good, advance planning, neither scenario need inhibit you from eventually securing the Right of Abode once the 7 year residence milestone has been passed.
VisaGeeza.Ai – Making Hong Kong Immigration A Lot Easier
