How Can I Convert My Foreign Domestic Helper Visa To A Dependant Visa After Marriage To A Hong Kong Permanent Resident?

Posted by The Visa Geeza / in Family Visas, Your Question Answered / 22 responses

Can you swap from a foreign domestic helper visa to a dependant visa whilst in Hong Kong?

QUESTION

My domestic helper, from the Philippines, is married to a Hong Kong Permanent Resident.

Her contract with me expires in April and they want to apply for a dependent visa for her.

Is this possible, what are the criteria and what would be the time line?

Can I extend her domestic helper visa whilst her dependent visa application is being processed, so she is still able to work?

Many thanks

ANSWER

It is entirely possible to convert from foreign domestic helper status through to dependent visa status, and the timeline is typically six to eight weeks for the finalisation of the dependent visa application. So given that your foreign domestic helper contract with you expires in April, and that her working visa, her foreign domestic helper visa is going to expire two weeks after that date, then effectively you’ve got enough time (or she’s got enough time) to make an application for a dependent visa.

And the details are contained in the Hong Kong Visa handbook, under legal dependent visa, you just follow that entire process irrespective of what your current immigration status is, and then when the Immigration Department have finalised the dependent visa application and approved it, a label will be issued to her that says that she now has a dependent visa and she’s going to have to relinquish her foreign domestic helper visa status and activate her dependent visa status.

And the way that this happens is that typically during the time that she’s holding her foreign domestic helper visa, she makes an exit from Hong Kong and relinquishes her foreign domestic helper visa status at the point of exit. And then when she re-enters Hong Kong, she places the new dependent visa label on a clean page in her passport and she enters as a dependent at that time.

So given that, we do have her contract expiring in a few weeks and it’s going to take six to eight weeks for the Immigration Department to finalise her her dependent visa application, it just seems to me that she can carry on working for you through to the April termination of contract date, and have her dependent visa application pending throughout all of that time, anticipate that it’s going to get approved prior to April and then, as I say, relinquish her foreign domestic helper visa at the time that it expires, naturally, and take her dependent visa out off to Macau and come back and activate her dependent visa status upon re-entry in the way that I described a little bit earlier.

So it seems to me that you’ve got all the necessary dynamics in place to make that conversion happen. And it seems to me that you’ve got more than sufficient time for all of that to play itself out until her current contract expires. And naturally enough, even though she has a dependent visa application in the pipeline that’s not yet approved until it does get approved.

So until such a time as it gets approved, her foreign domestic helper visa status will prevail nonetheless. And, of course, she’s here in Hong Kong under that status, to provide services to you. So she will certainly be able to work for you during all of that time.

I hope you found that useful.

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Will The Hong Kong Immigration Department Tell You Why A Visitor Visa Application Has Been Refused?

Posted by The Visa Geeza / in Refusals & Appeals, Visitor Visas, Your Question Answered / 2 responses

One of the more frustrating aspects of dealing with the Hong Kong Immigration Department is the almost total lack of visibility on why applications get refused. No more so when it relates to a ‘limited purpose’ application for a visa to visit Hong Kong.

QUESTION

Hi

I applied for my customer a visitor visa who is a Pakistani passport holder, which has been refused. How do I obtain information or minutes, reason etc from Hong Kong Immigration. I understand there is a way we can ask them, if it could be advised.

Thanks with appreciation. 

ANSWER

When it comes to appealing the decision of the Immigration Department to refuse an application for a visitor visa, your options are extremely limited. There’s certainly no formal avenue of appeal. Effectively, what you need to do is to try to ascertain, as best you can the reason for the Immigration Department’s refusal and then submit a second application that squarely addresses the shortcomings that you believe have led to the department’s refusal in the first place.

The problem is that, of course, the Immigration Department is a division of the security branch, so they exercise their responsibilities in light of the security of Hong Kong; and for the last several years, Pakistani nationals have routinely struggled to secure immigration status in Hong Kong, not least the visitor visas, because there has been many, many instances previously of Afghan nationals traveling internationally on fake Pakistani passports.

And, for all practical purposes, Immigration Department don’t have the ability to assess the quality of the travel documents at the point of the issue of the visit visa; so in the main, they tend to err on the side of caution and unless the applicant has got a significant track record of prior visits to Hong Kong on a trouble free basis, or he, through the provision of documentation in the application, can manifestly demonstrate that there is a significant applicant in question, a wealthy applicant, very successful businessperson or something that, on the face of the application, allows the Immigration Department to conclude that there would be no risk of overstay or no risk of security concerns during the time that applicant was in Hong Kong. Then you can expect Immigration epartment to say no rather than yes. So I wouldn’t be too surprised by the fact of the refusal. It does happen and I’ve certainly seen it.

Now, turning to the issue of being able to secure the necessary information to have another run – the first point of call is to call the Immigration officer who’s responsible for notifying you of the refusal and quietly sort of, you know, ask him as to what problems they had with the application to see if there’s any shortcomings that the applicant and with your support can address so that the second application might meet with a different outcome.

Failing that, or indeed supporting that, you’ve got the opportunity to request information under personal data privacy ordinance and also under the government code of access to information, the links to which I’ve set out in the post, there are specific preclusions as to what the immigration department will release under the code.

Whatever papers that you get from them, you can expect to be significantly redacted, so as to protect the Immigration Department’s internal policy and deliberations over the application so you can get a sense for what might be wrong with it. Will it tell you definitively in terms of, yes, the reason we refuse is this, no, you’re not going to get that information. At best, it’s going to allow you to make an informed decision about whether you genuinely feel that there’s a chance of getting this refusal effectively overturned on the subsequent application. But again, because we’re talking about a visitor to Hong Kong, this person has no rights, absolutely no rights whatsoever.

The Immigration Department will exercise their discretion, as they see fit to best protect the interests of Hong Kong as a whole, and their sense is that, well, occasionally, if the interests of an individual applicant or their supporter or sponsor in Hong Kong are not being fully reflected or represented in the decision that they make, then actually it’s just a case from their perspective of it just being a casualty of the implementation of a policy that, as I said, is designed to protect Hong Kong.

So it’s unfortunate but you do have the opportunity to have another go at it. The door isn’t closed, as I say. The two pieces of law that I’ve detailed in the post that answers this question, will give you the next steps, approach to what’s going on. But in my experience, I wouldn’t be too excited about the possibility of getting the refusal all the time. It’s just unfortunate that Pakistan is where Pakistan is now geopolitically and with the security concerns. The Immigration Department has been indeed very tough about these nationals.

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If You Stay In Hong Kong For 7 Years As A De-facto Spouse Holding A Prolonged Visitor Visa Will You Qualify For Permanent Residency?

Posted by The Visa Geeza / in Family Visas, Long Stay & PR, Your Question Answered / 3 responses

Could a prolonged visitor hope to get Permanent Residency in Hong Kong?

Short and sweet question today, but an important answer so worthy of a PodCast answer (I get loads of questions each day and I answer all of those capable of an answer (many are not – eg “I want to work in HK can you get me a job and help with the visa”?) . The really simple ones get 2 or 3 sentence email responses, often containing links to previously answered questions).

Where an issue has not been addressed previously, its added to the PodCast immigration knowledge base which is slowly building over time. In any event, we’ll answer every question we receive so long as it falls within our remit to do so.

QUESTION

My female life partner has been staying in Hong Kong under a “de facto wife” visa of 6 months which has been renewed already for several years.

Would she be entitled to ask for permanent residency if she continues to get this kind of visa for a total of 7 years ?

ANSWER

When a foreign national secures a prolonged visitor visa in Hong Kong, effectively, the Immigration Department have done an assessment of the life circumstances of the applicant, together with their sponsoring partner in Hong Kong, and have determined that for the purposes of family reunion, they should effect a positive act of discretion and allow that person to remain in Hong Kong on an extended and a prolonged basis, subject to all the conditions of stay that apply to visitor visa holders.

Consequently, all time spent in Hong Kong as a visitor visa holder, irrespective of the rationale for the Immigration Department enabling the grant of the visitor visa to the foreign national, that time does not count towards permanent residency in the HKSAR because by definition it’s a visitor visa, it isn’t a residence visa and therefore it doesn’t qualify.

Consequently, this is one of the great downsides of having a prolonged visitor visa – it works in the short term to allow non traditional families to remain together, but, effectively it sets the couple on a dual track strategy. The partner who is sponsoring the visitor visa holder effectively is marching towards the potential for the Right of Abode after seven years whilst the prolong visa visa holding partner, unfortunately, he’s not.

So the answer to the question is in the negative, I’m afraid.

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How Does Pre-Existing Business Ownership Impact On A Hong Kong Prolonged Visitor Visa Application?

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

Will what has been done before impact on a Hong Kong Prolonged Visitor Visa out of policy application now?

QUESTION

I have a general question regarding conditions of stay for a Hong Kong prolonged visitor visa.

On the Hong Kong Immigration website it says:

“Subject to the following conditions of stay:

(a) he shall not take any employment, whether paid or unpaid:

(b) he shall not establish or join in any business; and

(c) he shall not become a student at a school, university or other education institution. “

Does being owner of a business fall into one of these categories ? 

Considering that  the company was incorporated in Hong Kong by other persons a few years ago, and bought before applying for such visa ?

ANSWER

Really good question, and I’m grateful for you having raised it in the way that you have.

Given that your acquisition of this business interest occurred at a time when you were not in breach of your conditions of stay, assuming that, at all times, this business was acquired when you were not in Hong Kong, and therefore the issue of your immigration status at the time that you acquired the business doesn’t come into play.

The principal issue at play in this regard, then, is what will the Immigration Department make of the fact that you have an interest in the business at the point of you being granted a prolonged visitor visa? Because if you’re involved in the business operationally and intend to be involved in the business operationally while you’re in possession of a prolonged visitor visa, that will certainly be a breach of your conditions of stay upon the grant of a prolonged visitor visa, assuming, of course, that the Immigration Department give you one because it is an out of policy act of discretion to grant such a visa in the first place.

So, effectively, assuming that you’re going to disclose what your interests are, what your financial circumstances are as part of your prolonged visa application, then your interest in this business in Hong Kong will be disclosed to the Immigration Department and you’ll have to make certain representations in relation to it.

The Immigration Department will be concerned that if you’re going to play an operational role in the business, as I say, as a prolonged visitor, you’ll be breaching your conditions of stay. So you’ll need to tread very carefully in how you articulate your argument to the Immigration Department, so that they can be satisfied that if they do effect a positive act of discretion in your favour and they do grant you a prolonged visitor visa, they have no concerns about you breaching those conditions by then, immediately, in a sense, walking across town and then taking care of the business, as it were, a business, in this instance, that you acquired before your question of immigration status ever came into play.

So I don’t think you’ve got any issues at all to be concerned about in respect to how you acquired your business interest, prior to making this application for a prolonged visa visa. But it’s certainly in your best interest to disclose the fact of your interest in that business to the Immigration Department so that they can then take it into consideration when determining if they should make that out of policy determination to grant you the prolonged visitor visa that you’re looking for.

Okay. I hope you found this useful.

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Hong Kong Employment Visa – Can I Transfer To Malaysia For Work Yet Leave My Family Behind In Hong Kong To Carry On Our Lives Here?

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

Is it possible to stop working in Hong Kong under an employment visa, move to another country to work yet leave your family behind to continue their lives in here without you day to day?

QUESTION

Hi, I have got valid Hong Kong employment visa and i am living in Hong Kong since last 4 years with my family.

Now for work I might have to shift to Malaysia.

But as my daughter has recently started school, I want my family to stay in Hong Kong.

So what are my options here?

Can I ask my company to apply for extension even though I will be mainly based in Malaysia?

OR

Should I apply for the Quality Migrant Admission Scheme?

OR

Any other suggestion?

Worst case scenario my family moves with me to Malaysia but I want to avoid as it will disturb my whole family.

ANSWER

As a temporary resident holding an employment visa here, your family will be entitled to secure dependent visas and that will avail them of the ability to live in Hong Kong whilst you carry on your employment duties. However, if your employment visa is unable to be extended for any reason, in this instance because you’re going to be relocating to Malaysia, but unfortunately, the dependent visas which, accompany your employment visa enabling your family to live with you, they will be, effectively cancelled.

At the same time as your employment visa is unable to be renewed because you will no longer have accounting rationale as an employee in Hong Kong because you are not going to be working here, you are going to be working in Malaysia. So for all practical purposes, if your employment contract in Hong Kong comes to an end, thereby disabusing you or disavowing you of the ability to have an employment visa, then unfortunately your family’s dependent visas are not going to continue.

However, if you can enter into an arrangement with your employer such that your employment in Hong Kong will continue, that your deployment to Malaysia will be for just a temporary deployment, and that it’s always going to be the intention of your employer to have you back in Hong Kong and therefore they’re prepared to continue your Hong Kong employment irrespective of the time that you’re going to be spending in Malaysia, then in those circumstances, you will be able to get an extension to your employment visa.

And of course, your family’s dependent visas will also be extendable. And, at that point, effectively your family can live in Hong Kong, you can go to Malaysia, be based in Malaysia on a temporary basis or at least for the life of the assignment there maintaining your Hong Kong employment throughout all this time, and at the end of that temporary, albeit, potentially lengthy stay in Malaysia, you will be returning back to Hong Kong to carry on the employment that you’ve always been doing in Hong Kong. And as I say, your family will have been, able to reside in Hong Kong at all times. So effectively that’s your most realistic option.

Just turning now to the Quality Migrant Admission Scheme (QMAS), the reality is that unless you are something akin to a Nobel Prize winner or you’ve won a gold medal in the Olympics, or you happen to be Chinese because 77% of all approvals go to mainland Chinese, and the fact that the QMAS is a complete black box that you don’t have any visibility over as to how you might potentially be able to stay in Hong Kong or have your family stay in Hong Kong under that programme, I think it’s a very, very long shot to anticipate that the Quality Migrant Admission Scheme is going to address the solution to your particular quandary here.

Now, as regards any other particular immigration status, I mean, the only thing that springs to mind that might help you is if you’ve got HKD$10 million that you’re prepared to invest into Hong Kong under the capital investment entrance scheme. And as long as you’ve owned those HKD$10 million in assets for two years immediately prior to submitting your application, and you have the ability to hang out in Hong Kong for six to eight months for the time that it takes Immigration Department to complete that type of application.

If you’ve got those resources and you’ve got that time at your disposal, then you could be eligible for a capital investment entrance scheme visa. So for all practical purposes, that’s really about the shape of it. Your wife herself could get a student visa availing your child to get a dependent visa, and that would keep your family as an independent unit in Hong Kong, irrespective of where you are. So you might want to think about that.

But beyond that, I suspect all the other options are exhausted. Unless, of course, your wife is an entrepreneur and she wants to go on to secure a business investment visa in her own right, which would then effectively mean her dependent visa, which is reliant upon your continuing employment in Hong Kong, that dependent visa would end and she would be able to secure a business investment visa independently of you, and thereby go on to be able to sponsor your child for a dependent visa, and then your child will be able to remain in Hong Kong, too.

So, in terms of the visa options on the back of you, I think we’ve discussed all of those. But if there is, an opportunity for your wife to independently secure immigration status, potentially getting a job because she is deemed to be a professional under the General Employment Policy, she could take that route as well.

So I would say that those are probably the options that are available to you as two discrete parties, to your immigration and your residence in Hong Kong. I hope this helps.

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Can I Easily Return To (And Then Remain In) Hong Kong As A Visitor Once My Current Employment Visa Has Expired?

Posted by The Visa Geeza / in Employment Visas, Visitor Visas, Your Question Answered / 2 responses

Sometimes, people find themselves in a state of ‘administrative flux’ as one employment visa ends and the circumstances for a new employment visa have not yet, for one reason or another, materialised. The question is, however, can you easily return to / be in Hong Kong as a visitor whilst these wrinkles get ironed out over time?

First Published September 3, 2013 – Still of Interest Today

QUESTION

I have been living and working in Hong Kong for the past three years on a valid employment visa which has expired yesterday (2/9/2013).

I finished my employment earlier in the month (I am not continuing with them) and went to Canada for a holiday.

I returned to Hong Kong last night (2nd), hoping to enter on a visitor visa, however I arrived in HK at 10:00 pm they said I could only enter under my employment visa (as it was still valid for another 2 hours).

Therefore this morning, at Immigration Tower I was told I was a technical overstayer (by one day) and they have gave me another 2 days to exit Hong Kong which I plan to do tomorrow via Macau and stay for one night.

On my return on Friday I hope to be given a 3 month visitor visa.

My questions to you are:

(1) Do you think they will allow me to come back in once I have left?

 (2) Do you have any advice on what I should say to the admissions officer?

ANSWER

Yes. So, in this instance, I think you’ll find that when you make your reentry back into Hong Kong, the officer at the Macau ferry terminal will assess your bona fide as a visitor on the strength of the fact that you have just had an employment visa expire.

And it’s manifestly clear from the fact of your recent expiry and the trip in and out of Macau and what has happened down immigration tower that you’re just in the process of trying to regularize your immigration status whilst you find yourself in a state of administrative flux between employment positions.

And so you’ll find that the immigration officer won’t really question you too hard as to what your intentions are. And I think the risk of being refused entry is very low indeed. Now, in terms of what you tell the officer, you simply tell him the truth – what brings you back to Hong Kong at this time, what your intentions are, and allow him to assess your bona fide on the strength of your representations. And you’ll find that, ou know, in 99 times out of 100, he’ll just stamp you for 90 days and then you come. I don’t think you’ll have any problems.

Hope this helps.

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I Have A Hong Kong Employment Visa To Take Me Through To 7 Years But Now I’m Unemployed – Can I ‘Cruise’ The Last Year Without Working And Still Qualify For Permanent Residency?

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

Is it possible to lose your job (your Hong Kong Employment Visa), cruise through 12 months without working here, spend three months away in China studying then make an application for the right of abode with no questions asked?

First Published October 6, 2013 – still of interest today

QUESTION

Hello, I have lived and worked continuously  in Hong Kong for the past 6 years, and less than 1 year away from applying for my PR (right to abode application). 

I am currently unemployed, but have an active work visa from my previous employer which doesn’t expire until November 2014.  I intend to submit my HK PR application in August 2014.

I am keen to study mandarin in China for a short duration of time (less than 3 months), but will be required to apply for an F visa to study there (due to my nationality). 

As that time away from Hong Kong is less than six months and I intend to keep my rental flat in Hong Kong, will the application for stay in China for my studies in any way affect my status for the HK PR application next year? 

I don’t want in any way to risk jeopardizing being turned down for my right of abode.

ANSWER

The key issue here is that during the time when you have an employment visa, but you don’t hold a job, what has your efforts been during that time to show that you have maintained continuing intent to be settled? So there’s a kind of an expectation that if you stop working, then you’ll be engaging in activities that would allow you to restart work again as soon as the right moment came along, and that you weren’t just sort of cruising your time all the way through to the seven year mark.

So you do have a burden of proving your continuing intent to settle during the time just prior to making your application for the Right of Abode if you don’t have an employment at that time. So if you then factor into that challenge, desire to go and spend three months away in China studying that’s not excellent evidence in of itself, as to your intention when you are leaving Hong Kong because it depends on what you did before you went off to study and what you do immediately upon your return from studying.

So you need to think about that particular challenge and what this next phase of your life represents, how you can articulate that to the Immigration Department, come the time that you have to pass the approvability test for the Right of Abode.

Okay, I hope you found that useful.

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