Employment - Working Visa Transcript - for those people who prefer to read, rather than watch, the contents of the Hong kong Visa Handbook, we have prepared the following transcript of the A/V dialogue of our presentation Investment Visa - Preparing Your Case

An application for a visa to take up employment in Hong Kong (a working visa) will be successful if there is no security objection and no known record of serious crime, you have a good educational background in the relevant field; and in special circumstances good technical qualifications, proven professional abilities and relevant experience will do instead. There must be a genuine job vacancy and you have to have a confirmed offer of employment. You will be employed in a job relevant to qualifications or working experience and that job offered to you cannot be readily taken up by the local workforce. The emolument that you will receive which includes income, accommodation, medical and other fringe benefits must be broadly commensurate with the prevailing market level for professionals in Hong Kong.

If you take all of this together and wrap it up and boil it down to its core essence. You have the employment visa approvability test and this is that you must possess special skills, knowledge or experience of value to and not readily available in Hong Kong. Moreover, your employer must be justified in engaging the services of you, an expatriate staff.

So, in order to qualify for an employment (working) visa under the approvability test, you need to show that you have special skills, knowledge and experience. Special here as compared to other foreign nationals and also locals. Skills, knowledge and experience have to be in the context of the actual work to be done and those skills, knowledge and experience have to be of value and value here can be economic, social, educational. With all activities that are deemed of value however, it does depend on the nature of the work.

Those skills must not readily be available in Hong Kong and here the Immigration Department have their own methods to determine whether such skills are indeed available from within the local workforce. They often interact with other government agencies to seek official guidance and actually running job advertisements and then stating that no suitable person applied can be a double-edge sword because on the one hand by virtue of the fact that you advertise locally for a candidate, you are admitting that there remains the possibility of an employer finding the skills they need locally and consequently therefore it’s just a matter of time before a suitable candidate emerges. On the other hand, if you do advertise and you claim no suitable candidates emerge, the Immigration Department will ask to see the CVs procured in response. Either way it’s a struggle. Interestingly though, the Immigration Department do not really place the burden of proving that the skills in question are not available locally on the shoulder of the applicant and their proposed employer. However, making the argument, this element of the approvability test has to be addressed, if not directly then certainly by implication from all the other things that you will be saying in support of your application.

Types that you can generally fit into - and then approach your case accordingly – are three general classifications. These are intra-company transferee and typically with an intra-company transferee, there is no need to engage in substantive argument because these cases tend to be administrative in nature. However, it’s always worthwhile setting out specifically how the applicant satisfies the separate limbs of the approvability test. It may be a very obvious to you but not necessarily so to the immigration officer that is looking at your case. So, the more detail you can provide, the easier it will be for him to positively assess the application which suggests a speedy approach to approval.

You could have a locally recruited expatriate. If the applicant is already a 4+ years plus resident of Hong Kong and is set to move jobs within the same industry but over to a different employer, these cases tend to be administrative in nature; but any less than 4 years prior residence or where a previous employment visa was just recently approved or, most typically, where a visitor to Hong Kong is seeking to change status to take up an offer of employment, the case must be forthrightly argued.

The ‘newly-hired-gun-for-Hong-Kong’ scenario is where you have a specifically recruited expat from overseas. Great care has to be taken in preparing, and how you present, these applications. Consideration has to be given to the size, the scope and nature of the Hong Kong operation requiring these skills brought in from overseas specifically and the case made out that Hong Kong will very definitely benefit if the Immigration Department approve the application. The application must be strenuously argued if the Hong Kong business is only recently established or if it is not a particularly sizeable operation. The Immigration Department, simply put, frown upon overseas recruitment so the case must be suitably presented and correctly argued.

There are four further considerations that need to be put into play when considering an application for an employment visa (Hong Kong working visa). The first is sponsorship. The Immigration Department now have a very comprehensive form, the ID99B, which effectively puts the applicant to the test of being able to demonstrate the details of the employer who will be sponsoring the application. Moreover, if the potential sponsor is a new company, the Immigration Department will also be testing that business in addition to the actual skills, knowledge and experience of value should not be available in Hong Kong in respect of the individual applicant. Therefore, great care has to be taken when having a new company situation where a lot of information is required in order for it to satisfy the Immigration Department criteria of being a valid sponsor.

When you are in Hong Kong as a visitor and then an offer of employment manifests itself, it is possible to adjust your status from visitor to employment. You just have to follow a particular submission methodology which isn’t widely advertised by the Hong Kong ID. Naturally, they discourage from arriving in Hong Kong seeking to adjust their status, maintaining the policy line that all applicants for employment status must apply before they arrive in HKSAR.

Moreover, if you are successful in securing the consent of the Immigration Department to take up employment for a particular employer, if you wish to change employer subsequently, you need to make an application to the Immigration Department for those specific permissions; and changing employers, in terms of the difficulty in the application exercise, is very much like as though you are making an application from scratch because when you are employed in Hong Kong and you are given the employment visa to take up by that job, those approvals are limited to that particular employer, to that particular work and those particular terms and conditions in your circumstances and so employment visas are not transferrable from one employer to the next. Therefore, any kind of unapproved employment is illegal employment.

The question very often arises as to what situation is if you are having some kind of ownership stake in a business that is seeking to employ you to work for them. Well the reality is under Hong Kong Immigration law you cannot self-sponsor. What this effectively translates itself into is that if you have any value at risk in the employing entity, you are more than likely an investor. Now, there is no hard and fast rule as to what goes to make value at risk in these circumstances. However, a good general rule of thumb is that if you end up owning between 10% and 15% of the business, it is more than likely the Immigration Department will see you as an investor in Hong Kong rather than an employee for an independent third party entity in Hong Kong and it means that a different approvability test will be applied. If you are deemed an investor, they will look to see if you are in a position to make a substantial contribution to the economy of Hong Kong and this is a very different test to the special skills, knowledge and experience of value not readily available in Hong Kong which is the approvability test which applies, as we have seen, to employees.

It’s important to appreciate that the Hong Kong Immigration Department are extremely well resourced and incredibly experienced. If there is any effort to mask the share holding and play games with what is actually going on, it’s counterproductive because they will get to the bottom of what the ownership situation is each and every application and you want to be coming to the Immigration Department with clean hands. You want to be able to lift up your skirt and show them everything, as it were, and if you do this in an honest and forthright way, you will gain the good will of the department and they will seek to accommodate you if it is at all possible within the context of the various policy criteria that apply and how the approvability test can be applied in your circumstances. Generally speaking, if the Immigration Department believe that the human capital situation genuinely stacks up, you will get the approval that you are looking for.

The next step is for you to review the visa information document. This details each of the essential elements of a successfully argued Hong Kong visa case and contains in-context links to all of the resources needed to prepare your application and these include application templates, the online application forms, screen casts on how to complete the forms, a checklist of all the documents you need to prepare as part of the submission bundle, a crib sheet on how to submit your application and audio discussions of some of the finer points in official policy and procedure and specific case examples from the past which will serve to help you by way of illustration. Let’s go to the visa information document now.