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A frequently experienced conundrum: How can a foreign company temporarily sponsor Hong Kong employment visa permissions for its employees and contractors who need to work here in pursuit of a commercial arrangement which is of an indefinite or fixed duration here?

QUESTION

How can one visit and deliver short-term (typically 1-5 days duration) training courses in Hong Kong on behalf of an international training company headquartered in New York and which has a local office in Hong Kong.

The training would be delivered course-by-course under an ‘umbrella’ contract with the Hong Kong company i.e. no direct employee relationship, on an episodic basis to the Hong Kong office through an overseas Limited Company in South Africa  whilst travelling on a South African Passport.

What visa and application process would be applicable? It seems that different countries tend to treat this quite differently with some granting a business visa on written request from the host company, or in other cases allow this type of activity under a short-term waiver e.g. Singapore.

I am sure this must be a common situation, but I can’t see how this can be handled. Hong Kong Business Visas appear to stipulate you can’t work or provide a service or am I misreading the intention?  I hope that I have provided enough detail and it is succinct enough.

Thanks very much in advance and looking forward to your reply.

ANSWER

Yes, this really is a conundrum where you as a foreign company have received a contract to deliver services on the ground in Hong Kong, and now you’re attempting to understand what immigration permissions are suitable in your circumstances; and of course the Immigration Department’s website is not particularly lucid as to how you go about doing this and in actual fact you need to engage in a little bit of fancy footwork to achieve the immigration outcome that you’re looking for, but it is completely doable.

So first, let’s just deal with the issue of temporary visitor visa permissions and your ability to possibly deliver the training under the visitor visa. As a visitor you are not allowed to take up employment, whether paid or unpaid, without the consent of the Immigration Department. So business visitor, even though practically you get a 90 day period of stay when you arrived is not the correct immigration status in these circumstances, irrespective of how it works in other countries. Therefore, the question is begged as to how you go about creating a situation where your  entity that’s delivering the services is able to properly sponsor the party that’s going to be practically delivering the services for immigration permissions during the time that the training is going to be delivered.

So in effect, what this is going to involve is your South African limited liability company is going to have to establish a representative office here. And, in the throes of establishing that representative office, all the corporate details and information of the South African company will be presented to the Commissioner for Inland Revenue who registers the presence of the representative office.

And then all the similar documentation that’s required for the registration of the representative office is submitted to the Immigration Department in support of a Hong Kong employment visa application, citing the newly established rep office of the South African company as being the sponsor of the permissions for the person that’s going to be delivering the training on the ground; there will have to be a contract of employment between the Rep office entity and the individual person that’s going to be providing the services and the approvability test in relation to that employment contract.

And the party that’s going to be delivering the services, will apply and will need to show that they do possess special skills, knowledge and experience of value not readily available in Hong Kong, but on the basis that party is effectively coming to Hong Kong with the South African entity,  possibly even being the same owner of the South African entity that should just be a formality, but you will need an employment contract to cover those bases.

You’ll need to show the contractual paper chain between the various entities, New York into Hong Kong, then Hong Kong into the South African entity, effectively setting up the nexus for the Immigration Department so they can see how this commercial arrangement came into place and how in fact your South African entity and the individual himself who’s going to be delivering the training need to be on the ground for the purposes of  fulfilling their obligations under this contract.

Now the question is also begged as to given the episodic nature of the  training that’s going to be delivered in Hong Kong. In fact, should you be making an application for a twelve-month limit of stay which will cover all future sort of episodes during that time, or will the episodes be of such an infrequent nature that you’re going to have to make an application each time that you’re intending to come through to Hong Kong to deliver this training.

Of course much will turn on the frequency with which you’re supposed to be delivering the training and in fact exactly what the contractual paperwork between the various parties reveals as being the frequency for the delivery of the training. But as far as you possibly can, if you can make an argument to the department that the episodic nature will be very frequent such that it’s impractical for you to have to keep making a new employment visa application needs time to deliver this temporary training, then you could probably get the Immigration Department to grant you a one-year period of stay to cover all these bases.

So just to recap, there is a solution. It involves your South African company establishing a representative office. You need to make an application for a Hong Kong employment visa to be sponsored by that Hong Kong rep office of the South African company. You’re going to have to disclose all the commercial arrangements that have given rise to your opportunity in Hong Kong. You’re going to have to show to the Immigration Department what the track record of your rep office sponsoring entity is in South Africa. So that’ll require you revealing copies of your financial accounts and another information that will allow the Immigration Department to conclude that the Hong Kong Rep office can in fact be a bona fides sponsor for these foreign – national employment visa permissions to be granted on an episodic or temporary basis.

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