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First Published January 4, 2020 – Still Relevant 

Employment visa grant? What do the Hong Kong Immigration Department take into account exactly when considering an application for an employment visa where the applicant has recently divorced from a Hong Kong resident?

QUESTION

I have been in Hong Kong for two years and have recently divorced.  I have care and custody of our two children. 

My Ex husband is remaining in Hong Kong and I want to remain as well. 

I have until August 2020 to secure employment and an independent visa.  

I do not have a university degree and have not worked for over 10 years. 

My question is will immigration take into account personal circumstances, i.e.  keeping families together, when reviewing my visa when I do secure a job? 

Can I easily get a Hong Kong work visa if my young children live there?

ANSWER

To my mind, one of the great things about the flexibility of Hong Kong immigration and how it’s experienced is the way that the Immigration Department are empowered to take into consideration all the circumstances of an individual applicant when seeking to secure a residence visa or change their immigration status from one visa category to another.

In this question above, we have a situation where a present dependent visa holder who has got a limited stay clearly wants to remain in Hong Kong because her ex-spouse will be remaining here and she has custody of their children here in Hong Kong. Clearly it is in the best interests of the children that they have access to separated, albeit, continuing family arrangement in Hong Kong.

The problem lies in the fact that this ex-spouse who has a dependent visa come the expiry date of that in August next year, will no longer be eligible to maintain her residency in Hong Kong under that dependent visa because at the point of her marriage irretrievably breaking down the ability for her to carry on as a dependent ended.

Therefore, the question is begged, that even though the two children that she’s got custody of will have dependent visas continuing to be sponsored by their father, the independent immigration status that she will need to remain in Hong Kong to love and care for her children will not be available to her as a dependent.

So, in this instance, what she’s doing is looking for an alternate immigration status, which will primarily be driven in this instance by an employment visa; and if you look at the conditions for approval under an employment visa, normally there’s a requirement to be a university graduate, or if you don’t have university education, that you have about ten years directly relevant working experience in the managerial or supervisory capacity.

But because she’s been a homemaker all of this while she hasn’t been working, effectively she’s going to be seeking to re-join the workforce here in Hong Kong without all the normal conditions available for her to expect an approval for an employment visa. So, given that reality and given the circumstances of her family life, will the Immigration Department be sympathetic if she’s able to secure a job offer, and, at the point of her making an application to adjust her status from legal dependent through to an employment visa holder, will the immigration department, as I say, be sympathetic to the circumstances that she finds herself in and come to the party and ensure that the right decision is arrived at?

This family don’t have to be separated because of the implementation of immigration policy. And in my experience, I think it’s fair to say that the Immigration Department will do the right thing. Clearly, if she doesn’t have a job at the time that current limit of stay expires, then the Immigration Department can’t give her an employment visa; and, as we’ve seen, she can’t get an extension to a dependent visa. So the only thing that she’d really be able to do to remain resident in Hong Kong, or to at least remain in Hong Kong, would be to exit and re-enter as a visitor. But that’s unsatisfactory for any number of reasons: not least because she’ll not be able to use the time in Hong Kong as a visitor to count towards her permanent residency application –  if that’s what she’s planning to do in due course, and also there’s just the general uncertainties of being a visitor – meaning that the status will only be good for a period of stay that is commensurate with her nationality (and it’s not clear what a nationality is from the question; but she would only be able to get in the region of between 12 and 180-day limit of stay on each occasion, depending on which type of passport she carries).

So the bottom line is that, in my experience, if she can solve the first problem – which is to get a job offer and then under a current dependent visa, start working in that role and probably say, three months before her current limited stay as a dependent visa holder is due to expire, make an application for an employment visa sponsored by that employer that she’s working for. I think you’ll find that, in the unique circumstances of this lady’s life, the Immigration Department will grant her an employment visa so that she can remain in Hong Kong to fulfil the rationale of her being here now under her new future immigration status which is employment, but most importantly of all being able to keep the family united together in Hong Kong and not be separated by vast geographical distances. I trust you found that useful.

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