This is quite an unusual set of facts and provides a great opportunity to clear up one small, yet key, part of the Hong Kong employment visa applications process.
QUESTION
“We are from Canada. Recently my boyfriend and I were offered a job teaching English with a company in Hong Kong. We gave them the info for our work visa and they submitted the application. Actually, the terms and conditions were less attractive that we thought but we just wanted to get to HK. In the meantime, we kept applying for jobs to find a better offer and found a new company and were subsequently offered jobs. We gave them the appropriate visa info and they submitted an application for a Hong Kong work visa as well.
Will both visas get denied because we have two applications on the go at the same time? Should I tell the first company immediately that we do not want to work for them? Or should I let them both go through and pick up the visa for the second company when we arrive and tell the first company we want out? We are very worried about it. Do you have any suggestions? Will they issue two visas for two different companies and then allow us to activate one?”
What is the law about visitors working in Hong Kong as freelancers but not engaging in the local economy?
QUESTION
Hi Stephen,
I’ve lived in Hong Kong for 2 years and now I’m freelancing and getting all of my income from overseas.
I wish to stay in HK, so am I required to get a work / investment visa even if I generate no income here?
Thank you so much for your help.
ANSWER
If you’re in Hong Kong as a visitor and you establish or join in a business, irrespective of where the source of the income derives, then you need to have the permission of the Immigration Department.
And that means that you need to make an investment visa application. Because this fact that your income is being sourced overseas, effectively means that you’ve adopted a posture whereby any income that you are securing whilst you undertake these business activities in Hong Kong is not being disclosed to the Commissioner Inland Revenue.
And therefore, in a sense is a breach of the revenue law. So, you need to have a think about that moulids notwithstanding the immigration implications of the situation.
And secondly, if you are here as a visitor and you’ve been here for two years, at some stage, the immigration department are going to effectively take you to task for all this time that you’re spending in Hong Kong because if you here as a visitor, or even though it gets you physically on the ground and you’re able to interact within a Hong Kong society indeed in the economy as though you were a resident, you still remain a visitor. And there are expectations that as a visitor you come, you engage in Hong Kong for a short time and then you leave. And effectively if you’ve become a long stay visitor, the moment that you spend more than 180 days in Hong Kong or any one-year given period, then as you make your exit and re-entry into Hong Kong you could expect that the immigration officer may arrest you. That is not arrested you physically but may stop you. And then take you to task and begin to ask you questions about what’s keeping you in Hong Kong as a visitor throughout all of this time.
Now the problem there is that you never know when that’s going to happen to you. My assumption is in the absence of information to the contrary in your question that you’re a British national. And as a British national you would get a hundred and eighty days each time you present yourself at the border. So, it’s the six-month limit of stay which is extremely generous. If you’re not a British national and perhaps your European or North American national, then you’ll get a 90-day limit of stay.
Whether you’re British or European or North American the issue here is that you know you are going to be crossing the border quite frequently and therefore the possibility of being assessed by an immigration officer should come back in as regards your bona fide days as a visitor, the longer you stay increases and with it the difficulties associated with being a long stay visitor.
Now this can happen at any time and it’s quite topical in fact that you’ve asked a question at this time because just this weekend I got a call from an existing client: would I meet urgently with one of her connections who was an Italian national who had been here effectively three and a half years as a long stay visitor. Freelancing overseas very much in the same way as you are – that is performing this freelance duties in Hong Kong but actually spending a lot of his time in other countries overseeing the work that he was doing whilst he was in Hong Kong and frequently coming across the border to his home in Hong Kong. And then all of a sudden, he was stopped at immigration and he was granted a 14-day short conditional link. And that’s it, he has to leave, and he’s got all of his all of his life in his apartment and all his friends and everything else in Situ in Hong Kong. And unfortunately, he doesn’t have the requisite elements in place for him to go on to secure any other kind of immigration status.
So, there you have a situation where a long stay visitor freelancing for overseas clients having called Hong Kong home, been here for three years or so suddenly his residence was brought to an abrupt end with a 14-day limit of stay. And he’s literally packing his bags and preparing to leave as we speak.
So, there are dangers in the strategy that you’ve adopted. And I would urge you to think long and hard about making an application for investment visa for both immigration reasons and not least because of tax reasons.
I just love the easy Hong Kong immigration questions – gives me a break from thinking too hard!
QUESTION
Hi there!
I’m Australian and I have an approved Working Holiday Visa, but am wondering if I can work full-time (albeit for a max of 3 months per employer), or whether only part-time hours are allowed?
Also I have received an approval for the visa from the Immigration Department and have to leave Hong Kong for it to be validated…can I just leave for a day?
Is the purpose just for my passport to be stamped at Immigration on re-entry to Hong Kong Airport?
Many thanks for your help!
ANSWER
The working holiday visa for Hong Kong is really quite a useful animal for relatively young people that want to spend some time in Hong Kong on an extended basis. Primarily to experience Hong Kong on a holiday and supplementing the costs of spending that time in Hong Kong through taking up employment with no more than four individual employers with a maximum time per employer of three months during that 12-month limit of stay as a working holiday visa holder and the ability to work as many hours as you wish to work either on a full-time or a part-time basis for each of those maximum number for employers.
So yeah you’re not limited to the number of hours you can work effectively the hours that you wish. And as regards you presently being in Hong Kong as a visitor, after your working holiday a visa approval has been notified to you, yes you indeed collect the visa label from Immigration Department. And you need to exit – Macao or China is fine, or you can get an airplane if you wish, relinquishing your visitor visa status as you exit. And as you arrived in Macao or China or elsewhere place the working holiday visa label on a clean page in your passport and then turn around and come back into Hong Kong, activating your working holiday visa as you re-enter and at that point you’ll have a 12-month limit of stay under that immigration status from the date of you re-entering and activating your label.
So yes, you don’t have to spend in a number of days or indeed any time of note outside of Hong Kong that you simply need to make the exit to relinquish your current visitor visa status. And then make the reentry activating your working holiday visa upon your return.
Okay, easy question, appreciate you asking it. I hope you find it useful.
This question gets to the heart of permitted activity as a Visitor and the ability to remain here on an indefinite basis on that status.
QUESTION
Hi, I am a New Zealander currently staying in Hong Kong with my partner who is a permanent HKID card holder.
I do not have a HKID card, just a tourist visa, and I wish to study a university degree via correspondence (online study) from a UK university.
Do I need a Hong Kong student visa or a visa of any kind to do this?
ANSWER
In the final analysis whatever is deemed to be permitted activity as a visitor visa holder, is actually driven by the determination of the Immigration Department to prosecute for breach of conditions of stay.
And so, in my experience if you’ve made the decision that you want to remain physically in Hong Kong and undertake a course of study with a foreign education Institute, doing it online remotely, I believe you’d be very unlucky or unfortunate for the immigration department to want to prosecute you for breach of conditions of stay.
So, I’d certainly have it a very positive guess that you’d be perfectly okay to undertake that course of study while you’re in Hong Kong as a visitor.
But that’s not the real issue here. The real issue is the fact that you’re obviously intending to remain here on an indefinite long stay basis and the visitor visa category isn’t really designed for people to stay in Hong Kong on an indefinite long stay basis – that you need to have a formal rationale for being in Hong Kong on a long staying indefinite basis.
And the current circumstances that you find yourself in, unfortunately, you’re in a round pegs in a square hole situation that you’re here with your partner who’s a permanent identity card holder but you’re not married to him. And therefore, the rationale of dependency and family reunion doesn’t strictly imply so you can’t get yourself a legal dependents visa. If you have had a history of prior cohabitation with your partner particularly overseas, prior to arriving in Hong Kong it said becomes possible to conceive of you procuring a prolonged visitor visa on the strength of your pre-existing relationship.
And that’s in a sense you know what couches you as de-facto spouses. But if it’s a boyfriend/girlfriend type situation the relationship is relatively new and relatively new for these purposes is sort of 2 years or less. And you may struggle to persuade the Immigration Department to grant you a prolonged visitor visa for you to remain in Hong Kong under his charge as it were.
Apart from that what you then left with is running the gauntlet of the Shenzhen shuttle or frequently coming and going across the boundaries in other ways. Flying possibly back to New Zealand every now and again when your 90-day period of stay as a visitor comes up for renewal.
So, unfortunately, what you have at the moment is quite an unsustainable situation that is going to at some stage or other catch up with you. And I’ve included in this post a number of resources that deal with the question of being a long stay visitor in Hong Kong and how the Immigration Department sort of view these arrangements.
So, as I say love will conquer all, I’m certain that you’ll be able to come to some sort of arrangement that will allow you to solve your problem. But it’s certainly not going to be plain sailing from here on in and there’s certainly no visa category that addresses the rationale of remaining in Hong Kong in order to undertake a course of study with a remote foreign University.
Hong Kong Visas Overview in 20 Minutes – Transcript
Thank you, Cindy. And good morning, everybody. It’s a pleasure to be here with us sharing with you for 15 to 20 minutes, my favorite subject Hong Kong immigration. So we will sort of start off with the ramifications of visitors and residents coming to Hong Kong predicated on the fact that we’ve got a zero COVID policy here, which impacts somewhat significantly on your ability to move freely across our boundaries and to get into Hong Kong by the airport. I’ll touch them briefly on the what are the four main sort of immigration status that are used by foreign nationals to be able to pursue the sort of residents objectives in Hong Kong, I’ll speak to the fact that we do have an open door policy, nothing’s changed as a result of recent adjustments to national security law arrangements here.
And also then just have a minute or two on sort of what’s perceived to be a bit of an exodus from Hong Kong as a result of the national security law, the availability of the British National overseas new visa arrangements in the UK for being our Passport Holders.
If you are thinking about coming to Hong Kong, you will no doubt have looked really carefully on the government website to see what the arrangements are as for guys being able to physically enter Well, it’s quite a complex sort of matrix of different arrangements depending on where you’re traveling from, what your vaccination status is, and other things. But for all practical purposes, it breaks down into whether you have to do seven days quarantine, 14 days quarantine 21 days quarantine, whether you can do that quarantine at home or whether you can or you have to do that quarantine at a designated quarantine hotel. So presently we broken down into three categories with a high risk category which requires a 21 day quarantine arrangements in a designated quarantine hotel. We have an the USA is is a high risk category a group a country presently we have medium risk category B and Canada is a Category B comes with presently that’s 14 day designated quarantine hotel arrangements and then you have low risk which at this point in time is only one jurisdiction but New Zealand non Chinese jurisdiction which is New Zealand, which requires seven days in the designated quarantine hotel.
Home quarantining arrangement is only available to those travelers coming from Macau and China and who are vaccinated. And there are different arrangements in place as to whether you’re a Hong Kong resident or a non Hong Kong resident. Similarly, if you’re coming from Taiwan, it’s a 14 or a 20 day 21 day designated a quarantine hotel arrangement, again, depending on your vaccination status and otherwise. There are some schemes afoot that are making it easier to cross the border between the boundary between China and Hong Kong. The return to Hong Kong. That’s for Hong Kong residents and the come to Hong Kong scheme for a residents China
No that wants to come and avail themselves in Hong Kong without needing to undergo the formal quarantine upon arrival, there are challenges getting back into China as a result of having come to Hong Kong vendor, the return to Hong Kong or come to Hong Kong arrangements. But in very broad terms, the zero COVID policy is making life very difficult for people to get here easily at will, and entail some considerable delays to your planning because of the limited number of designated quarantine hotel slots available. So good planning is required if you’re planning to come to Hong Kong that you can come, the borders are not completely closed. But if you are coming from the USA as a category or country, you as a visitor, you’re not permitted presently, irrespective of your vaccination status. So as I say, some planning is required.
So the door is open, the Immigration Department is still accepting applications and processing that processing applications in exactly the way that they’ve always done, pre COVID. The main for these types that I’m going to focus on our heads of immigration activity that lead to the grantor particularly is predicated on your rationale for wanting to come here. I’ll just go through those briefly. And then just say a word or two about permanent residency, which requires a full seven years of continuous ordinary residence in Hong Kong. After having held a temporary so to speak visa for seven years avail you have the opportunity to adjust your status and become a permanent resident subsequently.
So the four main visa types are the employment visa issued under the general employment policy for professionals. And this entails also those individuals who are perhaps moving to Hong Kong on the basis of being intercompany transfer is working for a foreign organization that’s been a business operation as well established in Hong Kong is in a position to support and sponsor the incoming intra company transferee foreign employment.
These are the tests for approval for an employment these under the general employment policies that the applicant must possess special skills, knowledge or experience of value to and not readily available in Hong Kong. But more broadly, the compensation must be broadly commensurate with market rates pay to similar professionals in Hong Kong, which I guess is similar to all other jurisdictions, and that, for the most part, the immigration family needs to be satisfied that no local person can reasonably be expected to take the work as proposed for the foreign national employment visa applicants.
So on the basis that they are Professional, and otherwise, all matters are properly addressed. Generally speaking, these visas are being issued without any challenges without any problems. There are a little bit longer processing times as a result of national security or more detailed background security checks that are ongoing now. But otherwise, it’s business as usual for any professional that wants to be in Hong Kong to take up employment. So that’s the first visa type that represents probably in normal times about 17,000 approvals each year that facilitate the inbound traffic of foreign national professionals to take up residence here.
So the second visa type that is used by foreign nationals to engage in business here is the business investment visa as an intrapreneur. And this requires that the applicant be able to demonstrate to the Immigration Department satisfaction that they can contribute substantially to the economy of Hong Kong. That’s the test for approval. In broad terms, what does this mean?
Well, it means that the immigration I’m really looking for what I’ve counted as the three legs of the provability stool, as long as these three components are in place and addressed and are persuasive in the context of the plan for the business that is driving the application to the vision in the first place. The Immigration Departments is amenable to granting approvals for this particular visa type. So this is the first leg of the provability. So is that through the plan for the business, there must be a clear pathway to the creation of local employment opportunities. Typically substantial contribution to the economy of Hong Kong precludes those foreign nationals who want to come and establish sort of you know, one man consulting enterprises for the most part, there has to be a plan for jobs in the offing. In order to get this visa.
The second leg of the probability stool is the Immigration Department expect to see that there is a properly set up office in Hong Kong. This is the language from the policy and the proper setup office used to be a big, big bugbear arguably the most expensive component of getting these approved. However, thankfully we’ve got a last seven or eight years we’ve developed a significant ecosystem of CO workspaces here. So, co workspace arrangements, which are relatively cheap and cheerful to set up, mean that are properly set up, properly set apart, this can be suitably addressed with a minimum of fuss to pursue the visa application. So that’s the second leg of the approvability stool at work.
And then the third leg is really what counts with resources, two types of resources, there’s funding resources, and those resources which speak to sustainability of the business. So funding resources, this is really all about demonstrating to the department they’ve got sufficient financial means to on the one hand, commercialize your business plan and on the other hand, ensure that you’ve got sufficient financial means to be able to meet your financial commitments as they fall to the quantum isn’t fixed that policy, but a million Hong Kong dollars, generally speaking, which is about 120 130,000 US dollars, that generally ticks the box. So it’s not a particularly expensive program to need to fund to get this visa for. But necessarily, the actual quantum that immigration wants to see is a function of the business plan. So if your business plan clearly calls for more capital than that, then you obviously it’s how you million Hong Kong as a minimum, and then a clear sort of path to being able to take care of the rest ensure that your business plan is properly actionable.
And then the other side of the coin in terms of resources is the resources which speak to the sustainability of the business, the immigration department are not going to approve this particular visa type if they’re not satisfied that the numbers that are promulgated in the business plan are not capable of being achieved. In fact, they don’t want to see the business fail for wants of commercial prosecution. So there has to be something sensible put before them, that speaks to your ability to actually deliver on the numbers that gotta make up your plan. So in broad terms, that’s what the Immigration Department is looking for. When it comes to this particular visa type. It’s an arduous process, it’s four to six months normal processing times.
The third visa type is really supportive of the first two in as much as they are available for family reunion. And there are two particular visa types that avail family reunion in Hong Kong. One is the dependencies and the other is an out of policy program that the Immigration Department have put together based on pro long visit or consent for de facto spouses who haven’t recognized their relationship in illegal fashion.
And these non traditional relationships are afforded some measure of recognition by the immigration fund because they don’t want to separate families. But it does have the operating difference on the visa tag as to who can work and who can’t work depending on which visa type that you hold. So the visa type for married couples, heterosexual or same sex or whether their relationship is recognized by our legal marriage or whether it’s recognized by some other civil partnership or other instrument that legally recognizes their relationship in the jurisdiction where it was celebrated.
These people can qualify for dependent visass on the strength that the Hong Kong resident visa holder seeking to sponsor the family member can demonstrate to ImmD in broad terms, that they can put a roof over their head and food on the table of the family member that’s accompanying them after residents in Hong Kong.
The situation for unmarried partners is the prolonged visitor visa. The prolonged visitor visa is granted in six monthly increments they are readily extended every six months whilst they’re in Hong Kong. However, the difference between the two is that and
The dependent visa which requires legal recognition of the relationship privilege to work is available under the pro on visitor visa for de facto spouses, the holder doesn’t get the privilege to work. So there is a quite a powerful difference between the two types of visas depending on you know, the status of the relationship with a sponsoring Hong Kong resident visa holder or the applicant for the Hong Kong resident visa. So that’s the family union dimension address.
And then there are a number of permutations on the employment these are typically stated that are also available in Hong Kong depending on whether for example, you studied in Hong Kong and graduated from a registered tertiary education institute here with a degree or a bachelor’s degree or a Master’s or postgraduate degree that avails you direct access to and no questions asked, no employer required automatic employment visa, at the end of your period of study upon proof of your graduation from the university, here in Hong Kong under the immigration arrangements for non local graduates. So very flexible, these type and does provide a kind of a pathway to employment status for some individuals who might otherwise not be able to qualify to secure an employment visa as a professional. So that’s one kind of permutation on the employment visa. There’s another permutation that’s designed specifically for mainlanders, residents of the mainland, under a program called the admission scheme for mainland talents and professionals.
This is very much like the employment visa that’s issued to other foreign nationals under the general employment policy. But it has a higher bar to entry because there’s plenty of people in China that would like to come and live and work in Hong Kong. So the immigration and don’t make it particularly easy for them to secure this status, they have to typically have a master’s degree or at least a bachelor’s degree with a minimum of five years post graduation working experience in the case of possessing nearly a bachelor’s degree. And the sponsoring employer in Hong Kong is a very well established company.
And then there’s the training visa, which allows you to secure a status in Hong Kong for between six and 12 months to undergo training in Hong Kong for particular skills that are otherwise not available outside of Hong Kong. And again, you need to have a well established employer sponsor to sponsor those training bases. But you can get permissions to come to Hong Kong specific for training under a permutation of the employment visa. And then one other status that’s available for existing employment visa holders that have been able to secure a two year limited stay on a prayer prior application and have that status available to them at the time that they apply for what’s known as top tier status.
And basically what that means is if your taxable salary income in the most recent tax period was 2 million Hong Kong dollars or more, then you can apply to extend your current employment these and remove any sponsorship requirement from your current limited stay and secure a six year one time extension under the top tier scheme, so that’s a program that is particularly useful for those individuals that have the means to earn those kind of incomes and and then get an immigration advantage thereafter, which gives them a kind of a clear sort of, you know, immigration pathway through to the seven year requirement of continuous or in residence in Hong Kong to be able to subsequently qualify for permanent residency after seven years.
CINDY
So that’s Yeah, sorry to interrupt you actually, this is a super interesting IP, you know, opportunity that you’re mentioning, are there any opportunities to secure this passive investment for residency visas in Hong Kong is that the one you just mentioned before is there another one that is available to potential immigrants? Well, we used to have passive investments, a residence program, which was initiated in 2003, but was postponed indefinitely. And I’m not sure that we’ll ever see the light of day again, called the capital investment entrance scheme, which is where you effectively put 10 million Hong Kong dollars into qualifying investment tasks, asset classes, waited to two and a half years to get to the back of the queue. And then all things being equal. If the Immigration Department were happy with you, they would avail you of this capital investment tensions TN Visa, which was basically yours for seven years on the basis that you
Maintain your your ring fenced qualifying investment in these particular assets in Hong Kong are qualified for the visa that’s gone now. So there is no formal passive investment for residencies are at this moment in time, but there are some creative ways to skirt around that quite properly. And I had one or two of these that occasionally on my desk or come across my desk. I think those are very interested in that then I can have an offline conversation with them about it, but no, fundamentally there isn’t. But like all good lawyers, there’s always a way to get to them.
What do the Hong Kong Immigration Department make of lengthy, albeit temporary, secondments away from the HKSAR in pursuit of your employer’s business interests overseas?
QUESTION
Thank you for the Hong Kong Visa Handbook, which advises applicants for Right of Abode to be mindful of a 6 months plus absence from Hong Kong.
I would be grateful if you could advise on following Questions A and B.
I work as a Change Consultant for the Hong Kong office of a British firm and have been on secondment inside a client in Korea since October 2011.
Based on the facts set forth below, (Question A) do you think it matters for my Right of Abode application whether or not I make a quick trip to Hong Kong during December 2013 prior to my permanent return to Hong Kong during first week of February 2014 when my secondment ends, and (Question B) based on your experience, do I have a reasonable chance of gaining Right of Abode when applying end of 2014?
(i) I’ve been based in the Hong Kong office of my firm since end of Dec 2007 (such that I would have been based in the HKSAR for 7 years in Dec 2014). My Hong Kong work visas have covered all periods with no gaps since Dec 2007 to present. I have filed HK tax forms every year.
(ii) I was sent in end of Oct 2011 from the Hong Kong office to be seconded inside a client in Korea for one year. I received a Korean work visa for my secondment. In Oct 2012, by request of the client, my secondment was extended to April 2013. In April 2013, by request of the client, my secondment was extended to end of January 2014. The secondment and each extension is documented by contract with the client.
(iii) Since Oct 2011 when I was sent to Seoul, I maintained my Hong Kong apartment lease (under my name) until August 2013; since then I moved to another apartment for which the lease is under a friend’s name. Since Oct 2011, I have visited Hong Kong around twice every 6 months (each time for a day or weekend, to take care of errands in HK). I also flew to Hong Kong in November 2012 to take certain Hong Kong vocational examinations (which I passed). These examinations are critical (by law) to me being able to undertake certain specialist work in the HKSAR.
(iv) The last time I was in Hong Kong is mid-August 2013, and six months from that is mid-February 2014.
Again, I would be most grateful if you have any thoughts about my Questions A and B above.
