Employment Visas in Hong Kong – An Interesting Update

A little while ago we wrote an article about employment visas in Hong Kong (can be viewed by clicking here). With ever changing market conditions in the region, more and more people are finding themselves in slightly unusual scenarios regarding their visa statuses, particularly if they have been unfortunate to have been laid off. A recent article in The South China Morning Post provides some really useful advice on employment visas and their validity following a termination of employment and also answering questions on a couple of other scenarios. We’ve pasted the article text below and the original can be seen (with a subscription unfortunately) by clicking here.

Fired workers can remain in HK until their visas expire

Grace Shie, Head of Baker & Mckenzie’s Global Immigration & Mobility practice for Hong Kong and China

 

Question: I moved to Hong Kong from Australia and my employer sponsored my employment visa. My employer has just informed me that my position is being eliminated and my employment will be terminated in a month. What happens to my visa status?

You may continue living in Hong Kong until the expiration of your employment visa, even if your employment is terminated before that date. In fact, your employer is required to notify the Hong Kong Immigration Department of your employment termination and to cancel its sponsorship of your visa.

Even with that notification on file with the Immigration Department, you are permitted to remain in Hong Kong until your visa expiration date in order to look for another job, or to pack your personal belongings and close out your stay in Hong Kong. You may also continue using your Hong Kong Identity Card for travel in and out of Hong Kong during that same period. However, you are not permitted to work for a new employer without prior approval of the Immigration Department.

For example, let us assume your last date of employment is March 1, 2012 while your employment visa does not expire until September 1, 2012. You may continue living in Hong Kong and travelling in and out of Hong Kong with your Hong Kong Identity Card until September 1.

However, from March 1 to September 1, you are not permitted to start work for a new employer until that employer has taken over the sponsorship of your employment visa. The new employer will need to file a visa application for change of employment with the Immigration Department. You may commence new employment only after Immigration Department approval of the visa application is granted.

Question: Rather than look for a new employer, I have set up my own company in Hong Kong to provide consulting services. What type of visa do I need to manage and run my own business?

To operate your own business in Hong Kong, the most appropriate visa would be the employment ( investment) visa. To demonstrate eligibility, you need to provide proof that you possess a special skill, knowledge or experience of value to and not readily available in Hong Kong and that as an investor you are in a position to contribute substantially to the local economy.

How do you go about making this demonstration? Similar to the employment visa sponsored by your previous employer, you will be required to provide proof of some combination of academic credentials, technical qualifications, and professional work experience.

The purpose is to demonstrate to the Immigration Department that you have accumulated extensive experience and expertise to manage and run your business. For example, if your company will consult with financial services firms, then you might provide proof of your MBA and investment banking work experience. If, on the other hand, your company will provide IT consulting services, you might instead show that you have a Computer Science degree and a background working with technology companies.

An employment ( investment) visa application also requires proof of your investment in and ownership of the company, as well as your general financial resources to demonstrate your ability to further invest in the company as needed. The investment must be “substantial.” While the Immigration Department does not publish any guidelines as to the minimum threshold, the investment amount will likely depend on your proposed business venture.

In addition, you need to provide a robust and detailed business plan that describes the proposed business activities of your new company ( what will be your source of revenue), your place of operation ( where will your new office be located), and, significantly, your staffing plans ( how many locals you will employ). The Immigration Department will expect you to carry on a business that is beneficial to the city’s economy, which is in part demonstrated by the creation of jobs. Your visa application will have a higher chance of success if you rent an office and staff it with local employees ( meaning Hong Kong permanent residents), than if you simply work from home and operate as a one- person consulting firm.

Question: I have been successfully operating my business for a year and now have a staff of five employees. I just interviewed a candidate for a position with my company. She is a British citizen holding an employment visa and tells me she can start work immediately. Is this correct?

No. An employment visa is employer- specific. If this potential new hire holds an employment visa, she is permitted to work only for the company that sponsored her visa.

For her to be work- authorised with your company, you must take over the sponsorship of her visa by filing and obtaining approval of a visa application for change of employment with the Immigration Department. Even though she already provided proof of her academic credentials and work experience in the visa application sponsored by her prior employer, she must do so again as part of the change of employment visa application filed by your company.

Your company, as the new employer and visa sponsor, must provide its own set of companyrelated documents, such as the business registration certificate.

The answer would be different if this candidate held a dependant visa. Dependant visa holders are permitted to take up employment in Hong Kong without prior approval of the Immigration Department.

Let us assume the candidate’s husband is a British citizen holding the employment visa, while the candidate holds a dependant visa as his spouse. In this case, she would be free to work for any employer and to change employers without filing a separate visa application.

The information contained in this article should not be relied on as legal advice and should not be regarded as a substitute for detailed advice in individual cases. If advice concerning individual problems or other expert assistance is required, the service of a competent professional adviser should be sought.

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3 Responses to Employment Visas in Hong Kong – An Interesting Update

  1. Hazel Colby says:

    if you change employers, does this impact your accumulation of living in hong kong to be eligible for Permanent ID card after 7 years?

    • Hazel,

      We’ll post a little something up on Friday that hopefully answers your question in a bit more detail. Will let you know once it is up.

      James

    • Hazel, we have posted an answer to your question on our blog – I hope you find it helpful:
      https://ellicottlong.wordpress.com/2012/07/20/a-question-on-hong-kong-permanent-residency/

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