Hong Kong Visas Made Easy

Will Performance-Based Equity Compensation Suffice Instead Of A Cash Salary For A Hong Kong Employment Visa?

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

To what extend the salary can be replaced with performance-based equity compensation in case of a Hong Kong employment visa?

No one has asked me this type of question about compensation for employees for about 17 years now so I’m grateful to the questioner for raising it as she did.

QUESTION

I have successfully registered a business and been awarded an investment visa in Hong Kong.

The company is a start up with limited capital but big plans.

I have identified an individual I’d like to employ, have no doubt he would pass the approvability test, and don’t expect to have issues around quotas.

However my business cannot yet afford to pay a meaningful salary.

I’d like to compensate the individual with equity until such time as the business is generating enough revenue to pay market salaries – a situation both parties are completely happy with.

Is there any ability to sponsor an employment visa given this arrangement?

ANSWER

What a truly excellent question. And I’m sure that most entrepreneurs that have successfully secured an investment visa might at some stage look for the assistance of a third party foreign national to come into Hong Kong to assist them in their plans, and are obviously looking at an equity for compensation arrangement if that will in fact pass muster with the immigration department.

So the essential answer to the question is that yes, it is possible to have equity as a component for the compensation instead of salary, but it must not replace the salary under the General Employment Policy. The approvability test is effectively meaning that the Immigration Department are looking for a basic salary, and that basic salary should come in at the minimum levels, give or take HKD16,000 a month.

So if the value of this time is to be compensated in such a way that anything over the HKD16,000 a month is going to be reflected in an equity grant, then the Immigration Department should buy into that. So probably without too many questions asked on the basis that it’s properly documented and for all practical purposes, the party that’s receiving the equity grant is being compensated ostensibly for the professional nature of the contribution that he’s making.

So ensure that there’s a basic salary and anything above that compensated with equity grant should be fine. Of course, hanging above all of this writ larger were is what the Immigration Department will make of the application when it comes in. Given that, you’ve, I assume, just recently had an investment visa approved, did the potential for this engagement of this foreign national was it reflected in the representations that were made to the Immigration Department as part of your investment visa application? So will this come as a surprise to them or was it anticipated at all times? And how far along have you actually been able to progress your business since the fact of your investment visa approval in accordance with what the Immigration Department were expecting of you when they granted your approval.

So you need to look at where you are in the business,in addition to the individual special skills, knowledge and experience of Elliot and not really available in home to understand how the Immigration Department might respond to this questions such as, you know, have you recruited anybody else locally or is in fact this your first employee?

And as I say, if it is your first employee, was it anticipated in the business plan that the department saw from you originally? So take his application in the round when you’re considering structuring your argument, but also anticipate that as long as he’s getting the basic salary of about HKD16,000 a month with, the balance of his compensation being reflected in an equity grant it should be fine. I don’t imagine that you have too many problems. Okay.

I hope this helps.

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What Will The Immigration Department Make Of A Third Party Objection To An Application For A Hong Kong Investment Visa?

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

Objection to an application for a Hong Kong investment visa? Revenge is a dish best eaten cold, as they say.

So, can an application for a Hong Kong investment visa be negatively impacted by the fact of a debt outstanding to a disgruntled creditor – or can it at least be used as a point of leverage  to get the errant debtor to stump up.  Hmm…

QUESTION

I was the largest creditor of a limited company established by a foreigner director here in Hong Kong whom is the managing director cum substantial shareholder of that company.

My loan to him has been defaulted for 1 whole year period. Recently, I found out that he is in the process of submitting his investment visa application by using this limited company’s business operations and company’s financial accounts.

Being a creditor of his limited company,  can I sue a director of a limited company, and fail him from getting his  investment visa?

ANSWER

This is a great question, and I’m glad you asked. Over the past 20 years, I’ve been asked about the Immigration Department’s criteria for investment visa applications several times, and my response has always been the same. The department must consider all available information when applying the approvability test for any foreign national applying for a visa. The key requirements are that the applicant makes a substantial contribution to the economy of Hong Kong and that there are no security objections to granting them residence. If an applicant is a debtor related to their business, the Immigration Department will likely want to understand the full context affecting the business’s ability to implement its plan. It’s unrealistic to expect the Immigration Department to simply accept a letter from an unhappy creditor and take that at face value. They have a duty to consider all facts and circumstances. If this individual owes you a significant amount, the best course of action is to pursue litigation to recover the debt. Once you initiate these proceedings, inform the Immigration Department, including any defenses the other party presents. This will provide them with a complete picture of the situation. What the Immigration Department will deduce from this is hard to predict. However, pursuing legal action and informing them may encourage the debtor to take your claims more seriously than before. While I won’t make specific recommendations, this approach could lead to a more favorable outcome for you. Just remember, don’t expect the Immigration Department to side with you. It’s essential to assert your rights in court and keep the department informed about ongoing litigation. This is relevant to determining whether the business is a credible sponsor and if the individual can demonstrate a substantial economic contribution to Hong Kong without any security concerns. I hope this information is helpful!

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How Can I Get A Visa & Work Legally In Hong Kong?

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

This is the question most often asked of my profession really…

QUESTION

Hello,

I was a sponsored by my uncle’s company for 2 years then we had an argument and I left.

Now I’m holding a visitor visa.

For 6 months I’ve sent my resume to more employers than I can count but when it comes to the visa they say “We will call you back”.

I’m from Zimbabwe, 24 years old, graduated from a Tourism and Hotels University and I’ve a girlfriend from Hong Kong for more than 2 years and we actually live together but we won’t get married for the visa also  I’m not ready.

So, how do you suggest I go about getting a work visa again?

Thank you so much for your time.

ANSWER

Yes, it’s unfortunate you find yourself in this situation because, as you’ve discovered, many employers in Hong Kong find the idea of negotiating the labyrinth of an employment visa application for a foreign national just to be all too much to bear given that there is essentially no certainty of outcome.

And then there’s always the time that it takes for the visa application to place itself out before you’ll be lawfully employable and able to start your work. So it’s very difficult for me to be able to say to you that there is any sort of shortcut as regards this; the reality is, as you know, that you need to have a job offer to be able to at least promulgate an application for an employment visa, unless you use one of the other immigration statuses such as the Quality Migrant Admission Scheme or the Capital Investment Entrance Scheme, that will avail you of immigration permissions in Hong Kong so that you can take up employment without needing to deal with the visa question.

But being a graduate in hospitality, I suspect that the idea of being a quality migrant is probably too much in your situation, given the way that the Immigration Department are looking for top notch talent under that immigration programme, and under the capital investment entrance scheme, which is certainly available to you if you’ve got the necessary means and that’s a minimum of HKD10 million to lock into qualifying investment asset classes, it would seem that that might be beyond your reach as well.

Therefore, really the only pathway into employment in Hong Kong without the requirement for formal immigration permissions, at least initially, is if you go to Hong Kong University and in your instance get a master’s degree and get a student visa to allow you to carry out that course, which may take a year or two depending on the programme. And then once you’ve graduated from the Hong Kong University with your new master’s degree, you can enter the workforce for the first twelve months under the Immigration Arrangements for Non-Local Graduates (IANG). That effectively mean that you can just take up any employment once you’ve got the IANG stamp in your passport, which is a rubber stamping exercise in actual fact, as a fresh graduate, and that will then see you with a pathway into an employer. And, at the end of that first year, the extension that you will need is subject only to you showing that you’ve been employed in a job that is commensurate with your qualifications and the compensation is broadly commensurate with what is paid locally; and that is really the only clear pathway that I can see you getting into employment again without the engagement of an employer who is prepared to sponsor your employment visa. That, or as you are clearly in a loving, committed relationship with your girlfriend, you do, as you have identified, determined to get married, and thereupon you’ll be able to get a dependent visa; however, as you, I would never countenance the idea of marriage for immigration purposes, so it’s not recommended.

I’m sorry the news isn’t great, but that just seems to be about the maximum extent of your opportunities, I’m afraid.

I wish you all the very best.

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How Are Dependant Family Members Considered In An Application For The Right of Abode In Hong Kong?

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

Are family members who are accompanying a main applicant for the right of abode in Hong Kong treated in any particular way by the Hong Kong Immigration Department?

QUESTION

Hi

When applying for the right of abode in Hong Kong for the whole family .. if I put in 9 years worth of my husband’s tax forms and 9 years’ worth of rental contracts for our flat do I need to any any proof for myself and children (18, 16  &  13) .. all 3 of whom are now at boarding school in the UK. 

Does it matter that they have studied away as they are still resident here? 

We all have dependant visas.

Thanks!

ANSWER

When applying for the right of abode in Hong Kong, if the entire family has been ordinarily resident alongside the main applicant, you can prepare the application papers highlighting the main applicant’s continuous ordinary residence for the required minimum of seven years. Family members who have also been ordinarily resident during this period can effectively “piggyback” on the main applicant’s application. By submitting nine years’ worth of tax returns and corresponding documents that demonstrate your residential arrangements in Hong Kong, you can meet the documentation requirements for the family application without needing additional information. Regarding children being educated overseas in boarding schools, their time spent away for educational purposes will not disrupt their continuity of ordinary residence, provided their parents remain ordinarily resident in Hong Kong and the children return home during school holidays. Thus, their education will not hinder their eligibility for permanent residency alongside you and your spouse. I hope you find this helpful!

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Can I Get A Hong Kong Investment Visa If I’m Presently An Employee Seeking To Go Into Business With A New Partner?

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

What’s the differentiating line between a Hong Kong investment visa and an employment visa when investing in the company that is seeking to sponsor-employ you?

QUESTION

I’m from Australia and have been living and working, as a language teacher, in Hong Kong since  December 2014.

I am currently starting up a business with a partner.

I have an employment visa and my business partner has no visa challenge associated with this project – he is married to a local woman.

We are setting up an insurance brokerage based online. We have a business plan and also plan to employ at least 3 members of staff within the next twelve months.

We have a 90% completed website (by developers based in Hong Kong). We are also incorporated in Hong Kong too.

My partner has paid for his 51% equity with a permanent, 5 desk office in  Wanchai and HKD500,000 in cash.  

I am ready to invest HKD500,000 in capital in exchange for my 49% along with my domain expertise and experience. 

I am a qualified insurance professional in Australia and have sat for and passed the relevant exams in Hong Kong, but only really have experience here as a language teacher, so feel that an employment visa would be tough to get from Immigration.

We’re going to attempt to get a Hong Kong investment visa for me instead.

How much would I likely need to invest?  

How likely is it that I will be accepted for such a Hong Kong investment visa?

ANSWER

This is a great question, and I really appreciate you bringing it up. It goes to the core of three key points: your transition to a new business situation, moving from one profession to another for visa purposes, and the investment necessary to convince the immigration department of your eligibility. First, regarding your new business serving as a sponsor, you’ll need suitable business premises, which you seem to have, and a clear pathway to creating local jobs. Additionally, having adequate funding and resources is essential. Given that your website is nearly complete and you have a professional background, it’s likely that your new entity will meet the immigration department’s criteria for sponsorship. Next, let’s address the change of employment category. You’re currently on an employment visa that requires proof of special skills, knowledge, and experience not readily available in Hong Kong. While being an English language instructor can restrict your classification, if you’re qualified in another profession and intend to invest in a business, the immigration department will recognize your capacity to contribute to that investment as valuable. I advise you to invest the approximately half a million dollars you mentioned into the business. This can be through direct capital or loan capital. It’s crucial to demonstrate this investment as part of your commitment to participating in the company’s activities, as it can positively influence the immigration department’s evaluation. Now, regarding your immigration status, it seems you’ve ruled out applying for an employment visa due to the change in work focus. However, since you’re qualified for the work tied to your investment, you’re in a strong position to apply for a change of category from a sponsored employment visa to a business investment visa. Since you own less than 50% of the company, I recommend seeking your company to sponsor you. Although there are no strict rules, the immigration department will evaluate your application through both the employment visa and business investment visa criteria. Given that you’re an existing resident, processing for these applications typically takes four to six weeks, allowing you the flexibility to choose the best route. I would suggest pursuing the employment visa with specific considerations for your status as a shareholder, as this could enhance your chances of success. Overall, your qualifications, investment, and residency status position you well for a successful application. I wish you all the best as you move forward!

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How Easy (Or Hard) Is It For A Second Foreign National Business Partner To Get A Hong Kong Investment Visa For An Unprofitable Company?

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

What will the Hong Kong Immigration Department make of an application for a second partner to join in an existing business and secure a business investment visa (or) Hong Kong investment visa for an unprofitable company – easy or hard?

QUESTION

My business partner is moving to Hong Kong soon.

Until this point, we had no need for him to be resident in Hong Kong but soon he will  play an active role in developing the European part of our business.

Our company has not yet turned a profit so I am wondering if it would be a problem when I make him a contract and apply for his working visa as the other shareholder and director of the company?

What can you suggest?

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I Hate My Boss & Want To Leave My Job – What About My Employment Visa For Hong Kong?

Posted by The Visa Geeza / in 60 Second Snapshot, Employment Visas / 13 responses

In actual fact, your employment visa permissions belong to you, not your employer as they are just the sponsor of your immigration status, not the final arbiter of whether you can remain in Hong Kong or not.

Only the Hong Kong Immigration Department hold this power.

If you find your position with your employer untenable and determine to leave your job, effectively, your permission to work ceases at the point of you terminating your employment, but your consents to reside in Hong Kong continue until the Immigration Department tell you otherwise OR your current limit of stay expires.

Consequently, you should write to the HKID and advise them of the change in your circumstances and at the same time let them know about your new intentions in the wake of leaving your job.

It is lawful activity to look for an alternate employer under this scenario, as is interviewing and accepting an offer of employment. But it is NOT lawful to start working for a new employer until you have secured the permission of the HKID to take up that new employment.

To go on to get these permissions, you to make an application to change your employment visa sponsor, which should 4 – 6 weeks to complete after you have submitted your application in light of your new offer of employment.

However, it is important not to assume that your application will automatically be approved as you still need to pass the employment visa approvability test in respect of that alternate employment and for all practical purposes the Immigration Department will treat such an application as an entirely new one.

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