Oldham, Li & Nie is a high profile Hong Kong Corporate Law Firm.
As a Hong Kong Corporate Law Firm, OLN is frequently asked to assist international corporations and their employees on moves to Hong Kong.
Below are some of the typical concerns faced by companies and their employees when moving to Hong Kong.
When do I need a visa?
Q1: Do I need a visa to enter Hong Kong for study, employment, training, investment or residence?
A1: Generally speaking, anyone other than a person having the right of abode or right to land in Hong Kong, must obtain a visa before coming to and entering into Hong Kong. This applies where the purpose of being in Hong Kong is study, taking up employment, training, investment or residence.
Q2: If I only have a visitor visa, can I still visit clients and business contacts in Hong Kong?
A2: Visiting customers, attending meetings, concluding contracts and similar business conduct is generally permitted under a visitor visa.
However, any productive employment or training, whether paid or unpaid, for example, handling installation or posts-sales services is prohibited. In such cases, an employment visa is needed before entering Hong Kong as factually this will be regarded as working in Hong Kong.
Q3: How does an applicant apply for an employment visa in Hong Kong?
A3: The first issue is whether the applicant can apply for entry into Hong Kong as a professional. A “Professional” is generally taken by the Immigration Department to mean the following:-
- An Applicant who has obtained a degree or higher qualification in a full-time and locally accredited programme in Hong Kong may apply to stay/return and work in Hong Kong under the "Immigration Arrangements for Non-local Graduates" ("IANG");
- An Applicant who is not non-local graduates but possess special skills, knowledge or experience of value to and not readily available in Hong Kong may apply to come to work under the General Employment Policy ("GEP");
- Chinese residents of the Mainland who are not non-local graduates but possess special skills, knowledge or experience of value to and not readily available in Hong Kong may apply to come to work under the Admission Scheme for Mainland Talents and Professionals ("ASMTP"); and
- The IANG, GEP and ASMTP are all quota-free and non-sector specific. Apart from professionals in the commercial and financial fields, they are also applicable to talent and professionals in the arts, culture and sport sectors as well as those in the culinary profession with a view to enhancing Hong Kong's status as an Asian world city.
Q4: What other eligibility criteria are there when completing an employment visa application?
A4: The Immigration Department will need positive information that:-
- The business, through which the applicant proposes to be employed in Hong Kong, will benefit the economy of Hong Kong.
- The employment of the applicant in Hong Kong is essential to the employer’s Hong Kong business?
- The position cannot be filled by a local Hong Kong resident.
Q5: Are there any exceptions to the above rule?
A5: No. Any non Hong Kong permanent residents, who wish to work in Hong Kong, whether paid or unpaid, for any duration of time, must first secure an employment visa before taking up employment in Hong Kong. Failure to obtain an employment visa before commencing work in Hong Kong is an offence punishable by fines, imprisonment and deportation.
Q6: A US based company intends to relocate staff to Hong Kong to oversee business operations and take care of the clients in the Asia Pacific region, but the US company does not have any business entity registered in Hong Kong. Can the US company still be the Sponsor Company for an employment visa?
A6: No. All employment visa applications must be sponsored by a Hong Kong registered entity. As such, the US based company would have to incorporate a Hong Kong company, register a branch in Hong Kong or register a representative office in Hong Kong, so as to support any employment visa application.
Q7: I consider Hong Kong an ideal platform for doing business in Asia, so I want to Hong Kong to set up business in Hong Kong. Which visa do I need?
A7: You would need to apply for an investment visa, where you will need to prove that you:-
- Have a successful track record in business area in which you intend to do business;
- Are making a substantial investment in and to the economy of Hong Kong; and
- Propose to invest in and carry on a business beneficial to Hong Kong’s economy through, for example, the rental or purchase of premises, the employment of local staff and the payment of taxes in Hong Kong.
Q8: I understand that there are other means of obtaining permission from the Immigration Department to work in Hong Kong. What other available scheme are there for such access to Hong Kong?
A8: You can apply to gain access to and then work in Hong Kong under the Capital Investment Entrant Scheme (“CIES”).
Q9: What are the eligibility criteria under the CIES?
A9: Under the CIES, qualifying applicants are granted residence in Hong Kong if they make a capital investment of at least HK$10 million under their legal and beneficial control in certain classes of permissible asset. Individuals under this visa scheme are not required to be employed in Hong Kong although they are free to do so if needed.
In addition, the applicants must satisfy the Immigration Department that there is no adverse record detrimental to them either in Hong Kong or their country of origin and are able to demonstrate that they can support their living in Hong Kong, without relying on any return on the permissible investment assets, employment or public assistance in Hong Kong.
Q10: I am to apply for an employment visa for my secondment from the UK to Hong Kong, can I also apply for visas for my family members, so that they move to Hong Kong and live with me during my secondment?
A10: Yes. Persons admitted into Hong Kong to take up employment may sponsor their spouses and unmarried dependant children under the age of 18 for residence in Hong Kong as dependants. However, an unmarried partner is not entitled to apply for a dependant visa. Also, same-sex spouses may not be considered dependants by the Immigration Department because same-sex spouses are not recognised in Hong Kong.
Q11: Can dependants admitted under the dependant visa policy take up employment in Hong Kong?
A11: Dependants of persons who have been admitted for employment or of entrants under the CIES can take up employment in Hong Kong.
Other Points to note
Q12: What should I do when my employment visa application is approved?
A12: You have to collect a visa label upon a payment of a fee. Once the visa label has been collected, it must be affixed into your passport before you arrive in Hong Kong whereupon it will be activated by the immigration officer at the place of entry. If you are in Hong Kong at the time the visa is issued, you must leave and re-enter Hong Kong with the visa label affixed to your passport.
OLN's Employment Practice Group regularly advises clients on all aspects of business immigration and provides strategic support to ensure that the immigration process is completed as smoothly and efficiently as possible.
Oldham, Li & Nie, Solicitors