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Employment Visas in Hong Kong

Who Needs an Employment Visa?

As a general rule any person other than those having the right of abode, right to land or unconditional stay in Hong Kong must obtain a visa prior to arriving in Hong Kong if they wish to take up employment in the Special Administrative Region ("HKSAR").

Notwithstanding the procedure adopted for actually effecting the application (which are discussed in detail herein) and the consideration processes thereafter, the criteria which govern the availability of employment visas for Hong Kong is the same irrespective of which method of applying used.

But this doesn’t make the employment visa acquisition experience the same in every case.

In a broad sense employment visas can be broken down into three categories. Please note, however, that these categories are descriptive of the general themes in the employment visa acquisition process: the words are our own terminology and, with the exception of category (1), most certainly are not recognized by these labels at the Hong Kong Immigration Department!

(1) Inter-Company Transferee Expatriate Staff

(2) Locally Recruited Expatriate Staff

(3) Specifically Recruited Expatriate Staff

Inter-Company Transferee Expatriate Staff

This category covers the situation where the visa applicant is already working for a parent, sister or other formally associated company of the intended Hong Kong employing company. This basically means that a group or parent company wishes to transfer, for either a short or long time, a staff to Hong Kong from overseas to work in the Hong Kong office.

Depending on the length of the prior employment with the parent or group company, the work nature proposed for the visa applicant in Hong Kong and the possibility of an objective assessment of the fact that no local Hong Kong person could really be placed in the position to undertake the job proposed for the transferring staff, these types of visa applications tend to be merely administrative, as opposed to argumentative, in nature.

Of course all of the information which the Immigration Department need to assess the application must be supplied in the usual way and in a timely manner but, from the perspective of approvability of applications, Inter-Company Transferees tend to secure employment visas with little or no need for distinctly argumentative representations to ‘convince’ the Immigration Department of the critical need to transfer a staff to Hong Kong from a parent or group company.

However, in the consideration process the Immigration Department deliberate all the circumstances of a case and look to such factors as the ratio of local staff to expatriate staff employed, the special skills, knowledge and experience of the incoming transferring expatriate staff, whether the incoming transferring expatriate staff is replacing an outgoing expatriate staff and the general circumstances of the employing Hong Kong company as a whole. Thus it is especially important when applying for an employment visa for an Inter-Company Transferee expatriate staff that the whole picture be viewed to answer the question "Could this job realistically be undertaken by a suitably qualified local Hong Kong resident?"

As a general rule of thumb the larger the number of local Hong Kong staff employed the easier it is to justify the visa for a transferring expatriate staff. Similarly, the longer a company has existed in Hong Kong, the easier it is to get such a visa approved. Most importantly, however, is the length of prior employment with the transferring company. If the incoming transferring expatriate staff has been with the transferring company for only a few months this is not very favourable. Three years or more represents a considerable advantage, but still, all of the other factors will be considered in the case - no one point in itself is definitive for approvability purposes.

Locally Recruited Expatriate Staff

This category covers the expatriate staff who has been recruited locally in Hong Kong. This most often means the person who comes to Hong Kong ‘on spec’ hoping to find a job during an extended visit, often registering with a recruitment agency. This person usually comes to Hong Kong as a Visitor and then is offered a job here - and needs to secure an employment visa in order to take up the job offered to him or her.

These cases are most often the argumentative ones - and the most difficult to secure approvals for. Much care must be taken in ensuring that the Immigration Department are informed of the critical need to employ such an expatriate staff and to demonstrate definitively that no local Hong Kong person could realistically undertake the proposed work responsibilities. In borderline cases, sincere and consistent efforts to try to recruit a local Hong Kong person will have to be shown to the Immigration Department to have taken place before the locally recruited expatriate staff was offered the job.

This second category makes up an extremely large proportion of Hong Kong employment visa applications from foreign nationals. There is no reason at all why the majority of such applications need not be approved if the applications are handled correctly.

Specifically Recruited Expatriate Staff

Often, foreign companies recruit new staff abroad for specific deployment to their Hong Kong operation. Usually, after a few weeks of orientation in the parent business operation overseas, the expatriate staff is then transferred to Hong Kong to begin his or her duties. In these circumstances the employer has often gone to considerable expense in locating the expatriate staff and the expatriate staff themselves usually have given up great stability elsewhere in order to take up the position in Hong Kong, all before the visa situation has been satisfactorily resolved.

Employment of specifically recruited expatriate staff often occurs because of Mandarin or Cantonese language ability, prior China or Hong Kong related experience or for particular technical or industry specific skills.

In such types of applications the visa applicant must take great care to ensure that the Immigration Department are totally informed as to the underlying reason why an expatriate is favoured over a local Hong Kong person. In fact the Immigration Department frown upon such recruitment activities and the task of securing employment visas for these types of staff is often one of the most difficult to be found in the Hong Kong immigration process.

However, again, if the visa application is approached from the right angle, such types of visas will most often be approved.

Administrative Cases vs. Cases Which Need Strident Argument

By way of example, the following scenarios are illustrative of chances of approvability across the employment visa acquisition spectrum. It can be noted that these cases fall into two distinct categories, with a third ‘borderline; category coming into existence when a case doesn’t fit squarely within the administrative or the argumentative headings.

Scenario One: A securities house in Japan ‘headhunts’ a Japanese national Asian securities’ specialist from another Japanese securities company in Singapore for deployment in Hong Kong. This visa applicant has more than ten years of relevant experience in his field and his remuneration package very generous. Ultimately he would be licensed as a securities trader with the Hong Kong Securities and Futures Commission and would be appointed a director of the employing company in Hong Kong. Due to the high level nature of the appointment his application would very much be treated as an administrative one.

Scenario Two: A garment concern in Italy recruits a designer/fabric co-ordinator in Italy for specific deployment in their Hong Kong subsidiary. The reason for a Hong Kong deployment, as opposed to an Italian placement, is that the business itself had recently undergone a reorganization to reflect the importance of Hong Kong and China in the garment manufacturing and supply operation for their clothing supply business throughout Europe. Due to Italian QC standards, consumer tastes and market trends, the designer/fabric co-ordinator necessarily needs to be an Italian national with considerable experience and formal qualifications in this field. Indeed, if it were not for the recent corporate reorganization such employee would have ordinarily been employed in Italy without any need for her to be based in Hong Kong. Her visa application would be a borderline administrative/argumentative case.

Her visa would ultimately be approved due to the Immigration Department having been given definitive proof that (i) the parent company in Italy had indeed recently undergone a reorganization of business there necessitating her deployment in Hong Kong, (ii) the position needed an Italian national qualified in garment design techniques and experienced in fashion trends and Italian consumer tastes, and (iii) that, in all the circumstances of the employing company’s business in Hong Kong, they were justified in bringing in an expatriate staff to undertake this job function.

Scenario Three: A Korean company in Hong Kong, through a chain of informal introductions, recruited a Korean lady directly from one of the leading foreign language institutions in Korea. Her duties were to be basic general administration type duties in Hong Kong but with a measure of responsibility for business management. She, herself, was very capable and ambitious and eager to work in Hong Kong. Mandarin and Cantonese had been her major subjects at college and she had spent one year of her degree program in Beijing at university on an exchange program. Her visa application would fall squarely into the argumentative category. Extensive ability in languages is not sufficient in itself for visa approvability and a modicum of prior work experience would be called for. Moreover, the rationale for the employment of an expatriate staff in this case is not acceptable. The company wish to employ her in order to secure cultural affinity comfort and confidence that she would do a good job of what is actually a not very demanding job - whilst being an important position nonetheless. If everything were to work in her favour in the visa application she might stand an outside chance of an approval - but the application would have to be tailored around her strengths and the weaknesses marginalized. Moreover, the job position itself would have to include much more responsibility and have ascribed to it management and decision making functionality. Her visa, whilst not totally impossible to secure, will be very difficult to obtain.

Preparing the Employment Visa Application

Job Offer

Every employment visa applicant requires an offer of employment from a Hong Kong registered business entity. In all cases this must take the form of an offer to employ (as opposed to a confirmed employment contract per se) on condition that the Director of Immigration grants the requisite employment visa permissions. This part is important due to the fact that, notwithstanding any arrangements, which the intending employer and employee make between themselves, the Director of Immigration can not and will not condone any employment contract which appears to show that an employment has actually begun, prior to the securance of the correct visa.

In the case of an Inter-Company Transferee Expatriate Staff application, the Hong Kong company and the transferring staff will have to undergo something of a legal fiction creation exercise in regard to a Hong Kong job offer. In many circumstances the transferring expatriate staff will maintain his original employment contract conditions overseas and will receive some ‘local allowances’ in Hong Kong. As such, often, there is to be no formal employment contract between the Hong Kong company and the transferring expatriate staff themselves.

However the Immigration Department always want to see a contract of employment executed between the Hong Kong company and the transferring expatriate staff. This is for the simple reason that the Immigration Department need to settle themselves as to the fact that the transferring expatriate staff is coming to Hong Kong on employment terms which are no less favourable than such as would be offered to a local Hong Kong resident i.e., that the employing Hong Kong company is not transferring an expatriate staff to Hong Kong because, in all the circumstances, it is cheaper to do so than hiring a suitably qualified local Hong Kong person.

In this case the problem can be solved by either effecting a local employment contract to cover the ‘local allowances’ (as long as they meet the criteria for local contract terms’ approvability) with express reference to the continuing benefits being paid overseas, or to make a ‘local contract’ which encompasses both the overseas and Hong Kong paid benefits.

If the transferring expatriate staff is to be remunerated entirely from the Hong Kong operation then the employment contract which prevails between the transferring expatriate staff and the Hong Kong registered company will suffice in respect of the job offer aspect of the visa application process. Either way, the phrase ‘This employment is subject to the approval of the Director of Immigration’ should be inserted in the contract.

For the other types of employment visa application, a ‘Conditional Contract of Employment’, ‘’Conditional Letter of Appointment’ or ‘Offer of Employment’ (signed as accepted by the employee) document will suffice, again to include the phrase ‘This employment is subject to the approval of the Director of Immigration’.

A Local Sponsor

Every employment visa applicant needs a local sponsor to guarantee the expatriate’s stay in Hong Kong. In a conceptual sense, this is to provide the Immigration Department with a mechanism to finance a deportation of the expatriate in the event that he or she becomes ‘undesirable’ during the stay in Hong Kong.

However, the standard practice in an employment visa application is for the employing Hong Kong business to act as the local sponsor.

Hong Kong registered businesses which are generally acceptable to the Immigration Department, as sponsors, are as follows - with the generally most ‘acceptable’ appearing first and the least acceptable appearing last.

* Hong Kong incorporated limited liability company.

* Hong Kong Branch of an Overseas Company, registered under Part XI of the Companies Ordinance CAP32.

* Hong Kong Representative Office of an Overseas Company, registered with the Commissioner for Inland Revenue.

* Non-professional Partnership registered with the Commissioner for Inland Revenue.

* Non-professional Sole Proprietorship registered with the Commissioner for Inland Revenue.

The Test for Employment Visa Approvability

In every employment visa application the Immigration Department apply the following Policy test:

" Does the applicant possess a special skill, knowledge or experience which are of value to and not readily available in Hong Kong? "

Moreover, the Immigration Department will:

" .... take into consideration, amongst other things, whether it is justified for the employer to bring in an expatriate staff. "

This translates itself into extremely strong discretion in the hands of the examining Immigration Department officers.

There is no case law or prior precedent, which can be relied upon as a definitive and legal basis for employment visa approvability. Therefore, given that the Immigration Department do not provide detailed guidance as to types of applications which are likely to be approved or refused, the only way to test the strength of a case is to make an actual application.

This can be a double-edged sword.

If you get the application right, your visa will be approved. If you get it wrong, your application will be denied and the Immigration Department will not give you any specific reasons as to why it was not approved. They will simply cite the test for approvability and then state:

" your employment visa application was refused as it did not fall within the ..... criteria (of the existing policy) ."

And so, the prevailing employment visa approvability policy dictates that:

(i) the applicant should possess something special about them (compared to other individuals, both expatriate and local Hong Kong persons alike);

(ii) that something special should be in relation to a skill, knowledge or experience (for application in the context of the proposed employment relationship);

(iii) that something special should be of value to Hong Kong (in the sense of contributing to the well being of Hong Kong - economic, social, educational etc.) and not easily located from within the local workforce (but without the need to prove impossibility of locating such locally);

(iv) on balance, notwithstanding the applicant successfully qualifying on criteria (i)-(iii), should a local Hong Kong person be employed to do this job? (e.g., should the employer be training a local person to do this job, or, by paying more to a local than the prevailing rate, the job will be easily filled by a local Hong Kong person attracted by the higher remuneration available?)

What Does it Take to Pass the Test?

"Special"

This criteria mostly applies to those cases that are argumentative as opposed to administrative in nature.

"Special" in this sense is extremely subjective and no definitive and objective test is available for guidance. Inherently derived language and cultural affinities are NOT special in of themselves. Therefore applicants and their proposed employers should be extremely careful not to use (for example, where relevant) "Japaneseness" alone as being the "Special" defining quality of an individual in an employment visa application.

This limb of the policy appears to be satisfied through possession of employment context experience, training, formal education or other ability. Examples of ‘specialness’ which have passed muster in previous applications include, inter alia, foreign language operating environment computer abilities, foreign language journalism, foreign equities know-how, obscure language skills, futures and futures’ options market know-how, alternative health care methodologies, kimono design, sushi chefs, broadcast journalism and chicken sexing and baby-eel strength sensing abilities (!)

However, ‘specialness’ is largely defined by the experience or knowledge it describes and thus, in ensuring that this limb of the approvability test can be passed, attention must be specifically placed on the actual prior employment and/or education history of the employment visa applicant, as opposed the

‘special quality’ of such in or of itself.

"Skill, Knowledge or Experience"

Again, if the case is an administrative type, assessment of this criteria is secondary in importance to the critical need of the employing organization to secure the employment services of the expatriate for deployment in Hong Kong.

If the case is an argumentative or borderline one, this limb becomes critical in importance.

As the defining criteria of approvability per se is extremely difficult to enunciate in view of the discretion within which the Hong Kong Immigration Department exercise their policy interpretation responsibilities, it would be useful to identify those areas which generally do NOT satisfy this limb of the employment visa approvability test.

In the case of the following examples employment visa applications are usually not approved:

(a) where there is nil (i.e. zero) prior working experience either part time or full time;

(b) where the job involves merely administrative responsibilities;

(c) in positions involving mainly accounting or secretarial only type work with no management or supervisory responsibilities;

(d) specifically, hairdressing or beautician, general retail;

(e) when the employment visa applicant is under 21 years of age and does not possess a university degree or two year college equivalent;

(f) when the job involves labour only type work (e.g., waitressing, retail outlet shop floor assistants);

(g) specifically, nursing and paramedical;

(h) applicants whose entire record of prior working experience was secured in the armed forces or civil service of a foreign nation (but this is subject to the exact nature of the proposed work responsibilities of the Hong Kong job and, generally, all the circumstances of the case);

(i) general sales work, with the target buyers being predominantly Chinese persons or businesses;

(j) where the job calls for specific Hong Kong recognized qualifications which the employment visa applicant does not possess;

This list is not by any means exhaustive and, on occasion, an employment visa application from within these categories will be granted if all the circumstances of the case, taken together, justify an approval.

In a general sense this limb of the test is usually satisfied, subject to passing the "justified in bringing in an expatriate staff" limb (below) where:

(i) the employment visa applicant has significant prior experience in a particular type of job (usually three years or more).

(ii) the employment visa applicant’s employment field is obscure in of itself (e.g. Japanese language environment computer networking engineer or documented competency in specialist industrial techniques and processes).

(iii) the employment visa applicant is to undertake extremely well remunerated senior executive type responsibilities in an organization which is well known and respected (banks, consumer product manufacturing concerns, airlines, multinational trading companies, etc.). Often where the employee has been ‘headhunted’ and is to be well paid.

(iv) the proposed employee is obviously a specialist, by virtue of the nature of the work he does, his advanced formal qualifications or his standing in his (or Hong Kong’s) community in relation to his work.

(v) the applicant is the obvious candidate, objectively assessed, to undertake the work responsibilities of the job in question.

"Of Value To"

This part of the test is almost impossible to address objectively. However, most employment visa denials are based on other limbs of the approvability test. Whilst it is not a matter of public record, the Immigration Department, as part its ‘front line’ responsibilities under the Security Department of the Hong Kong Special Administrative Region, generally categorize proposed employing business organizations in Hong Kong according to a ranking system of credibility. Thus, employment visa applications to be sponsored by publicly listed companies, respected institutions and quasi government agencies are given a strong rating by the Immigration Department and stand a good chance of approval, notwithstanding weaknesses in other parts of the approvability criteria. Small and medium sized private business organizations develop a certain position in the credibility ranking system by virtue of a whole myriad of factors, one of which is prior Immigration Department interactions with the proposed sponsoring employer. This explains the reason as to why, generally, it is important to be professional and respectful in your dealings with the Immigration Department. There is no ‘blacklist’ in the commonly understood sense, but the profile which the Immigration Department develops on individuals and business organizations can ‘colour’ the manner in which they are treated in various dealings.

Thus, if the Immigration Department feel that a proposed sponsoring employer is low on credibility in its ranking system (for any proven fact or objectively derived suspicion) and an individual employment visa applicant easily satisfies all of the other approvability criteria, the Immigration Department may rely on this limb to justify a denial of the application.

Similarly for individual applicants themselves.

The Immigration Department is a positive-outlook and thoroughly professional organization which deals with many thousands of cases every month. (If anyone has cause to doubt this, just make your own comparisons of the sheer professionalism of our Immigration Department in relation to other immigration authorities in the world). Their principal responsibility is to maintain the security and well being of Hong Kong as well as to administer the ability of its citizens to move freely around the world.

As, by definition, the majority of applications for employment visa consents come from foreign nationals with no formal ties to Hong Kong, the Government or its people, it is hardly surprising that, after having exercised its responsibilities in regard to consideration of an employment visa application and formally refused it, the Immigration Department prioritise other cases. This re-prioritisation tends to antagonize applicants whose visas are refused and the accompanying disappointment can lead to outbursts of emotion, frustration and anger. This achieves nothing except to possibly ‘colour’ the applicant’s profile and thereby potentially jeopardizing future applications (or the Reconsideration process).

Whilst denials on the " of value to " grounds do not raise their head frequently, they can become apparent in cases where, possibly, criminal elements are known to be involved in the business or the business activity itself is not perceived to be socially beneficial, whilst being legal.

"And Not Readily Available in Hong Kong"

This limb of the test, at first blush, appears to be easily satisfied. On the assumption that the proposed employer were to demonstrate that a concerted local recruitment exercise has been effected prior to consideration of an expatriate, one would naturally assume that, a documented negative outcome to the search for local talent would definitively determine that, indeed, the skill knowledge and experience at issue was not readily available in Hong Kong.

Experience suggests that this is not really the case. There is no doubt that a genuine recruitment exercise with a nil result goes a long way to part satisfying this limb of the approvability test, it will almost certainly not satisfy the test in of itself. Direct experience has demonstrated that it is the Immigration Department’s view, on their own criteria, as to whether or not they believe the skills, knowledge and experience are readily available in Hong Kong. This can have extremely severe consequences for entire segments of industry in Hong Kong if the data which the Immigration Department use in determining this portion of the approvability test is errant.

One such situation which has been experienced in recent years is in relation to the position of Estimator, in the construction and buildings materials industry. There is a manifest shortage of locally qualified persons in Hong Kong to undertake this type of work and efforts at securing employment visas for expatriate nationals have consistently met with a refusal on the basis that such expertise is readily available in Hong Kong. This flies in the face of statistics of the Government, the educational institutions of the HKSAR, the construction industry itself and the employers who have been suffering as a result of not being able to secure visas for suitably qualified expatriate staff so urgently needed to be employed in Hong Kong.

The Immigration Department have held the view that there is no shortage of marine engineering Decompression Chamber Operator expertise - in spite of the fact that there are only two such facilities in Hong Kong: one of them is operated by the Fire Services Department, the other by our client who was kept waiting several months by an Immigration Department seemingly unable to find anybody locally who is suitably well qualified to prepare an official opinion as to the extent of the availability of such specialist skills locally. Go figure......

Another difficulty in passing this part of the approvability test is that skills and abilities which are readily available in Hong Kong, but, by virtue of their sector specificity (e.g., hairdressing and beautician qualifications (widely available in Hong Kong) but to be applied in a Japanese salon (thus necessitating Japanese language abilities and cultural affinities) mean that the Immigration Department do not accept that the Japanese orientation of the application of those skills make the combination of such "not readily available" in the context of the approvability test.

There is a dual standard at play. It seems that Sushi Chefs are basically employment visa approvable but qualified Japanese beauticians are not. The business field is different but there are many parallels in regard to the nature of the clientele and the qualifications required in the two jobs. Sushi Chefs are not readily available in Hong Kong but beauticians qualified to work in Japanese salons seemingly are "Justified in bringing in an expatriate staff"

Again due to its subjective nature, this limb of the test is nebulous in its objectivity. In its barest form it seems to be defined as being where the proposed employer can conclusively demonstrate that a local Hong Kong person is effectively or practically precluded from active consideration for the position on offer to the expatriate.

A Summary of the Test for Employment Visa Approvability

As we have seen, the entire employment visa approvability test, even when broken down into its component parts and examined closely, doesn’t afford any concrete guidance as to the chances of an approval in any given circumstances surrounding an employment visa application.

The test, when applied in practice, seems to suggest that the employment visa applicant be qualified in some objective way to do the job offered to him or her. If the job nature is a general run of the mill type position, which doesn’t call for any outstanding quality from the person to undertake the work, the visa application is unlikely to succeed. If the case is administrative in nature the effect of the test on employment visa approvability is less than where the case needs to be stridently argued or is otherwise borderline administrative/argumentative.

Documents for Submission in an Employment Visa Application

The Immigration Department work solely on the basis of the information which they are supplied by the applicant and the sponsoring employer and the maxim which applies in regard to documents to be submitted in an employment visa application is - the more the merrier.

It is critically important to effect best endeavours to give the Immigration Department all of the documents they request and to surpass their minimum requirements if at all possible. Lethargy or reluctance to secure documents from third parties will mean the employment visa application will be jeopardized.

The documentation and information required typically takes two forms:

· that available and expected from the applicant-employee and marked * below, and

· that to be provided by the sponsoring employer and marked **.

The following documentation and information is that which is almost always required in any employment visa application, regardless of the submission procedure utilized. In Method One submissions (via a Chinese Embassy/Consulate overseas) as well as Method Two submissions (direct application to the Hong Kong Immigration Department by the sponsoring Hong Kong employer) - as discussed below - the systems work such that the documents available and expected from the applicant-employee are tendered as part of the application initiation exercise with the documents required of the sponsoring employer usually provided upon the request of and subsequent direct submission to the Immigration Department whilst the application is undergoing formal consideration. In Method Three submissions(change of status/sponsorship - whilst the applicant is in Hong Kong) all the information can be submitted by the applicant at the time of initial application. If some of the information is not available at the time of Method Three submission this will be called for by the Immigration Department at a later date. Similarly in Method Two submissions (direct application to the Hong Kong Immigration Department via the sponsoring Hong Kong employer) all of the information discussed below can be furnished at the time of initial application if such is complete and ready to hand.

· A copy of the sponsor’s Business Registration Certificate, Certificate of Incorporation and/or Memorandum of Incorporation and Articles of Association **

(Ref: Form ID(E)936 G Section 1)

These documents are to be supplied where the sponsoring employer is a Hong Kong incorporated limited liability company:

Business Registration Certificate: a blue paper license which proves that the company has registered with the Hong Kong Inland Revenue Department, and needs to be reissued, for a fee, every year.

Certificate of Incorporation: a yellow paper certificate issued by the Hong Kong Registrar of Companies to show that the company was indeed incorporated and has limited liability status.

Memorandum of Incorporation and Articles of Association: the internal ‘rules’ of the company showing the types of business activity the company is allowed to undertake and how the shareholders and directors must relate to each other in their corporate capacities.

· Financial standing of the sponsor/sponsor's company (income tax return, trading profit and loss account, profit tax return) **

(Ref: Form ID(E)936 G Section 3)

This information and documentation is required to empower the Immigration Department to ascertain the financial prowess of the sponsoring employer. The principal reason for their request for such information is to determine the viability of the sponsoring employer as an economic entity and to further ensure that the visa applicant is not simply using a shell company without any actual business operations to sponsor an application, which is merely a sham or is otherwise contrived.

There is no specific ‘need’ for the sponsoring employer to have accounts which show a profit per se. The main interest is in the turnover figure and the business potential the company has for the near future.

Frequently, companies do not have accounts as such ready for submission. It is often the case that the owners and directors of the company feel that to produce accounts earlier than the very last moment prior to submission for audit (usually 18 months after the company is first incorporated) is problematic and thus try to fudge the issue with the Immigration Department. Such an attitude can be fatal.

This is due to the fact that the Immigration Department need such information to undertake its due diligence procedures necessary in employment visa applications. Cases will almost certainly be refused if inadequate information as to the finances of the sponsoring employer is provided. Moreover, companies have a statutory responsibility to maintain accurate and adequate accounts throughout their financial year. If such are not readily available for submission to the Immigration Department a negative message is sent - that the company does not take its legal responsibilities seriously. These types of negative messages should be avoided at all cost.

That said, the Immigration Department are also realists in the sense that companies often need time to prepare accounting information and so they will usually allow three to four weeks for submission of financial information, if such time is needed.

If recent audited accounts of the sponsoring employer are not available, relatively up-to-date management accounts will suffice instead, so long as they are chopped and signed by a director of the company as being true and accurate.

The Immigration Department are especially interested in the turnover of the sponsoring employer during the three years immediately prior to the application and this should be provided without fail for all those years in the three that the company has been in business.

Financial documents which should be submitted in support:

Recent Audited Accounts: for the last accounting period. If the accounts are in the process of being audited, submit the audited accounts for the immediately prior period as well as the provisional accounts which are with the auditor undergoing annual audit procedures.

Up-to-Date Management Accounts: if the sponsoring employer is mid-way through its financial year, a copy of the last audited accounts should be submitted together with a copy of the up-to- date management accounts. These can be one or two months out of date. No matter - this simply reflects the standard delays in assessing the true financial situation in a company as a result of the availability of credit terms and an accounts receivable balance in normal business circumstances.

Profits’ Tax Return: of the company showing how much corporate profits tax was paid in the previous fiscal year and the amount of the company’s turnover.

In an ideal situation all of these documents would be submitted in support of the employment visa application.

· Company staff list with salary offered and position held and list of expatriate staff previously or currently recruited from overseas **

(Ref: Form ID(E)936 G Section 4)

Details which must be included are:
Full Name
HKID Card Number
Job Title
Salary

At this stage many sponsoring employers make a critical error, creating a great deal of trouble for themselves. Any expatriate staff not holding Unconditional Stay status

or the right of abode/right to land in Hong Kong and are to be included on this list must be currently sponsored, in an official sense, by their employing company. If not, the Immigration Department will likely pick up this anomaly and take both the individual and the company to task for such an unauthorized employment.

This is one of the tools, which the Immigration Department uses to monitor lawful sponsorship of employment visa holders by duly authorized sponsoring employers.

Similarly with existing expatriate staff who are in the process of requesting the approval of the Director of Immigration to authorize a change in sponsorship arrangements from one sponsoring employer to another.

It is important to remember that the consent of the Director of Immigration to such an arrangement must be secured before the employment with the alternative sponsor can commence.

· A copy of the applicant's service contract or letter of appointment with details of post, salaries, benefits and employment periods

(Ref: Guidance Notes ID(E)937 Section 14(d))

Remember that the employment is conditional on the approval of the Director of Immigration and thus the following (or similar) phrase must be included ‘This employment is subject to the approval of the Director of Immigration’.

· Details of the job to be performed by the applicant in Hong Kong **

(Ref: Form ID(E)936 G Section 2)

This is the one of the key areas which determines the chances of an approval.

It is extremely important that considerable thought go into the nature of the information to be supplied. It is the description of the job at which the Immigration Department will look very closely in the proposed work responsibilities of the visa applicant to ensure the effective preclusion of any local Hong Kong resident from taking up the position. Therefore, when preparing the description of the job proposed for the applicant, care must be taken to ensure that the description itself reads in such an way as to, on the face of it, create the impression, clearly and without any possibility of internal contradictions, that only the subject expatriate applicant could be expected to fill the position.

When crafting the job description of the applicant's post, it is advisable to adopt the following technique:

* marginalize all work responsibilities which appear to be administrative in nature.

* minimize, as far as possible, duties which are reliant upon mere language abilities or otherwise cultural affinities.

* emphasize and elaborate on the particular skills knowledge and experience of the applicant in the context of the job.

* emphasize the specialist nature of even the most minor elements of the work function so as to bring out the small, yet key, aspects of the job.

* minimize the mundane and accentuate the unusual.

* avoid at all costs the temptation to justify administrative and non- specialist work functions by arguing foreign language and cultural skills, even when the job actually calls for such skills.

· Details of the applicant's educational, academic and professional qualifications and attainment together with working experience *

(Ref: Forms ID(E)936 E & F)

If the application is to stand a good chance of approval, these details must accord exactly with both the information contained in the resume of the employment visa applicant and must work to support the information included in the sections herein

· Details of job to be performed by the applicant in Hong Kong and

· Justification for need to employ the applicant (why can the post not be filled through local recruitment? Please state the reasons).

As far as possible all of this information should be submitted to the Immigration Department. Copies will suffice (even fax copies in many cases - albeit originals could be called for later). If some considerable time has passed since a previous employment has ended or if a previous employer is no longer in business some measure of proof must be arranged to ensure that the Immigration Department do not arrive at the view that such experience is a mere fiction fabricated to assist the Hong Kong visa acquisition process. Alternative proof can take the form of tax notifications, national insurance records and other suitable official relevancies. If the employment visa applicant is an Inter Company Transferee Staff an official "Confirmation of Employment" should be provided by the transferring parent or group company.

If more than ten years have passed since a prior employment or the finishing of a formal course of education (except in the case of graduation from University), inability to supply documentary proof will be marginalized if suitable explanations are provided instead.

However, if the ‘critical need’ arguments for the employment visa applicant’s services hinge directly on such a prior education or employment experience, it is extremely important to be able to prove that, indeed, the applicant does have such experience and is, in fact, in possession of the relevant educational qualification.

· Justifications for the need to employ the applicant – why can the post not be filled through local recruitment? **

(Ref: Form ID(E)936 G Section 5a)

This is the one of the key areas which determines the chances of an approval and the actual content must be prepared extremely carefully.

This element of the employment visa application is a hybrid of the points:

· Details of the job to be performed by the applicant in Hong Kong and

· Details of the applicant's educational, academic and professional qualifications and attainment together with working experience discussed above.

Again, as stressed throughout, care must be taken to ensure that the visa applicant does not attempt to justify his or her employment visa permissions on the basis of mere linguistic or cultural affinity qualities. To satisfy this element of the employment visa application there must be an earnest rationale for the provision of the employment services of an expatriate person.

It is at this point in the application process that the visa applicant and the proposed sponsoring employer have the opportunity to demonstrate exactly why it is the subject applicant personally who is deemed "special" so as to undertake the proposed work responsibilities. Of course, if on the face of it, there is effectively very little possibility of securing the services of a local Hong Kong person to do the job, this can be stated freely. If the sponsoring employer has previously attempted to secure the services of a local Hong Kong person to do the job in question, and has met with little success in this regard, then the documentation which supports this local recruitment effort can be submitted and referred to in support of the employment of the expatriate employee on this occasion.

If on the other hand, the job itself could seemingly and satisfactorily be undertaken by a local Hong Kong person, then the information supplied to the Immigration Department must be carefully presented and thoughtfully argued.

· Has the company tried to recruit a local resident to fill the post? If positive, please produce proof of local recruitment (e.g. newspaper advertisement, employment agencies record, etc) **

Ref: (Form ID(E)936 G Section 5b)

This information assists the Immigration Department to determine whether or not a local person should, in all the circumstances of the case, be offered the position. There is a double-edged sword in play here. If an advertisement or employment agency work order is placed in order to pre-empt the objection of the Director of Immigration that a local person should be offered ‘first shot’ at the job in question, the sponsoring employer is exposed to the argument that the special skills knowledge and experience of the expatriate applicant are in fact readily available in Hong Kong (otherwise why run the local recruitment exercise?).

It is ironic that the fact of running an advertisement as an attempt to effectively preclude an expatriate visa refusal can actually work to bring about a denial instead. As a visa approval strategy a half-hearted local recruitment exercise is, where the intention at the outset is to employ an expatriate, seriously misguided.

In such a scenario the focus shifts from the applicant’s special skills knowledge and experience and onto the not readily available in Hong Kong limb of the employment visa approvability test. Instead of homing in on the employability qualities of the expatriate applicant in question the actuality of the local recruitment exercise (being tacit admission by the employer that the skills are readily available in Hong Kong) can mean that the application might well veer off on a tangent and end up being a ‘bun fight ‘ as to ‘how hard’ an employer has tried to find a local person to do the job and provoking a non-productive debate with the Immigration Department as to the quality and calibre of the local candidates who applied for the subject position (see below).

· Has there been any response to the company’s recruitment efforts? If positive, please provide the resume of the candidates who applied for the posts, their salaries expected, and the records of interview and the reasons why they were not recruited **

(Ref: Form ID(E)936 G Section 5c)

This element of the application, if applicable, should be tackled in exactly the same way as the point :

· Justifications for the need to employ the applicant – why can the post not be filled through local recruitment? was addressed. It is important to marry, in the argumentation process, the visa applicant’s skills and experience in relation to the proposed job function as against the candidates who were considered as part of the local recruitment exercise marginalizing, as far as possible, language and cultural affinities as being the basis of the ‘critical need to employ’ the expatriate applicant instead of a local contender.

· Evidence of the applicant’s past residence in Hong Kong, if any *

(Ref: Guidance Notes ID(E)937 Section 14c)

If the applicant has previously resided in Hong Kong, copies of previously held passports sporting the relevant stamps should be submitted (or a copy of a Hong Kong Identity Card) to evidence any prior Hong Kong residence of the applicant. (This point is not especially relevant these days as full details of any prior residence will be available as against an original file reference number held on computer by the Immigration Department.)

· Photocopies of travel document containing personal particulars, its date of issue and date of expiry (front page & latest Hong Kong entry stamp page, existing entry or re-entry visas if any) *

(Ref: Guidance Notes ID(E)937 Section 14a)

· Note: In addition to the above-mentioned documentation, other information and documents in support of the application may be required by the processing Immigration Officer in individual cases.

It is extremely advisable that the sponsoring employer to also submits the following documentation and information as a matter of course in every employment visa application:

· Copy of the most recent Annual Return filed with the Registrar of Companies (FORM AR1), along with Companies FORM D1 (Notification of First Secretary and Directors) and FORM D2 (Notification of Changes of Secretary and Directors) if applicable, and FORM SC1 (Return of Allotments).

· Detailed letter introducing the company and its business.

· Company Brochure (and/or "Company Profile "), sales publications, press articles and any similar promotional type materials, which verify the business type of the company.

· General Proofs of Business - for example, trading documentation, shipping documents, invoices, contracts, agency and distribution agreements etc.

· Office tenancy agreement copy.

· If there is a substantial overseas parent company the following documents could also be submitted to assist in the credibility establishment process: Certificate of Incorporation of the parent company, its audited financial statement and the parent company profile or brochure (which will often suffice instead of Hong Kong corporate background information.)

Submission Procedure in an Employment Visa Application

A Note on Immigration Department Application Forms. In May of 2001 the Immigration Department completely revamped the system of application Forms to be utilized across the entire range of visa types, seeking to unify and standardize the ‘Non-Special Programs’ application procedures and informational materials attempting to put all the application processes on a common footing.

Methods One and Two can be said now to be based entirely on the new application Forms.

Method One - Submission of all Documents Through the Chinese Embassy or Consulate Abroad

This involves going along to the Chinese Embassy or Consulate and completing the Forms in the ID(E)936 Entry Visa package (citing ‘Employment’ as the purpose of entry) along with as much of the above-listed documentation and information as possible.

The completed Forms along with the supporting information and documentation will then be forwarded to the Immigration Department in Hong Kong who will, within a period of four to six weeks, contact the sponsoring employer in Hong Kong and request further information in support of the application. The information requested will be such information as is necessary but has not been provided via the Embassy or Consulate at the time of initial submission of the application.

In this regard, rather than the sponsoring employer sending all of their corporate and other information to the applicant overseas, they could simply wait for the Immigration Department to contact them, subsequently submitting the information after such has been formally requested. The advantage of submitting everything together via the Chinese Embassy or Consulate overseas is that time can be saved if as much as the information necessary for due consideration is submitted at one time. Many weeks can be lost with documents passing back and forth between the Immigration Department and the sponsoring employer in Hong Kong.

After this process has worked itself through, the Immigration Department will advise the Chinese Embassy or Consulate with the result and the details of approval or will otherwise notify the sponsoring employer in Hong Kong by letter that the visa has been approved and that the applicant may attend the Chinese Embassy or Consulate two weeks later for visa issuance, via passport endorsement, in the Chinese Embassy or Consulate where the application was initiated.

On balance, however, it is usually much more efficient to utilize application submission Method Two and in fact the vast majority of entry visa applications for the purposes of employment are effected in this way.

Method Two - Form ID(E)936 A - Direct Application to the Immigration Department by the Sponsoring Employer in Hong Kong

Instead of the employment visa applicant approaching the Chinese Embassy or Consulate abroad, there exists an application method whereby the sponsoring employer submits all of the documentation and information to the Immigration Department directly in Hong Kong (on behalf of the employment visa applicant personally).

Method Two system works as follows:

The employment visa applicant and the sponsoring employer make their conditional employment contract and execute it. The applicant then prepares all of his or her documents and executes Immigration Department Form ID(E)936 A (to be signed by the applicant personally) enclosing the additional completed Forms ID(E)936 E & ID(E)936 F together with items marked * and attaching a passport sized photograph.

The sponsoring Hong Kong employer completes and executes Immigration Department Form ID(E)936 G and prepares all of the documentation and information marked ** together with the Sponsor’s Certificate ID(E)936 B. If the sponsoring employer is a corporate entity then the personal information of the signatory (such as the personal references on the Form ID(E)936 B) can be ignored and the essential corporate information provided instead (company name, address, telephone and fax numbers).

The two sets of materials and completed Forms are then submitted together to the Immigration Department in Wanchai (2/F Receipt and Dispatch Unit) by the sponsoring employer in Hong Kong. In due course and upon recept by the Entry Visa Section (located on the 24th Floor of Immigration Tower) a file number will be allocated to the case and the ID813 Acknowledgement Card will be sent to the applicant or sponsoring employer at the Hong Kong address nominated on the ID813 (assuming that such an ID813 Acknowledgement Card was completed by the applicant and included in the application submission bundle). The ID813 is important as it provides the applicant with a file reference number and proof of case submission. Files sometimes get mislaid at the Immigration Department and completing and submitting the ID813 can save a great deal of time and frustration later if the paperwork subsequently goes missing for any reason.

The application is then dealt with as a ‘By Letter’ case and all communications in regard to the case are channelled through the sponsoring employer in Hong Kong.

When the visa has been approved, the Immigration Department will contact the proposed sponsoring employer in Hong Kong and ask them to come to the 24/F of the Immigration Department in Wanchai to collect the Entry Visa ‘sticker-label’. This sticker is then sent by the sponsoring employer in Hong Kong to the applicant overseas who, upon receipt, places it on a clean page in his or her passport and enters Hong Kong with employment visa permissions from the very outset of his or her stay in Hong Kong.

Method Three - Change of Status Application by the Employment Visa Applicant via Form ID91 whilst already in Hong Kong.

This method is now perhaps the most widely used and is almost follows exactly a ‘change of sponsorship’ case - where the applicant currently has an employment visa sponsored by one company but who is now seeking to take up a new employment with an alternate employer.

Both ‘change of status’ and ‘change of sponsorship’ applications, in terms of the consideration processes, are almost identical. However change of status applications are processed via Counter No. 1 on the 24th Entry Visa Section and ‘change of sponsorship’ applications via the 5th Floor Extension Section.

For change of status applications the systems operates as follows:

The employment visa applicant arrives in Hong Kong as a Visitor - i.e. without having applied for or otherwise secured an employment visa in advance of travelling to the HKSAR.

The employment visa applicant visits the Immigration Department in Wanchai in person taking along all of the documentation and information for submission (including his or her original employment contract plus one copy of it) with two Immigration Department Forms ID91. No photographs are necessary.

The applicant submits all the information marked * and ** above, Forms ID91 together with either a completed/executed Sponsorship Form ID428B to the processing Immigration Officer and, after a short interview, is usually granted an extension to his or her Visitor visa for a period up to the discretion of the case assessing officer. Such extensions are granted if required by the applicant where his or her current Visitor permissions are due to expire. Please note well that any such extensions to Visitor visa status do not authorize the applicant to take up employment in Hong Kong at this time.

At this point the applicant will be asked to execute a Form CSF-057 undertaking not to engage in any activity which would represent a breach of his existing conditions of stay as a Visitor.

The case is then denoted as either a ‘By Letter’ Case or a ‘ Form EV122’ Case.

‘By Letter’ Cases

If all of the documentation and information required in support of the application has been submitted at this time, the applicant will be given a small card with a visa application reference number (e.g. VC/A 12345/97) along with the denotation that the case will be processed ‘By Letter’. This means that, upon provisional examination of the application as submitted, no further documentation and information will be required until the merits of the case have been formally considered by the Immigration Officer to be charged with its processing. This Officer is only allocated the case some days after it is first submitted.

Four to six weeks after the first submission of the application paperwork the Immigration Department will contact both the sponsoring employer and the employment visa applicant personally, via the employer’s address, for further information which itself will have to be submitted within two weeks of the date on the letter.

Depending on the relative strengths (or weaknesses) of the case, the Immigration Department will notify the applicant and the sponsoring employer via letter (but sometimes by telephone call or fax) the result of the application within four weeks of the date on which the last set of information was submitted.

If the visa application is approved, the applicant then returns to the Immigration Department (24th Floor) for employment visa endorsement, getting the employment visa issued on the same day.

Form EV122 Cases

If the Immigration Department believes that, upon provisional examination of the documentation and information submitted, further and better particulars are required (without having examined deeply the merits of the application on the day of first submission) they will issue a Form EV122 to the applicant (or, alternatively, Form EV123 if the application relates to an application for a visa for a cook or a chef) and will instruct the applicant to submit additional documentation and information within four weeks of the date of the initial submission.

The Form EV122 (or Form EV123) contains a standard list of the documentation and information (marked as * and ** above) which need to be submitted and the applicant, with the assistance of the sponsoring employer, should submit this additional material within the time frame designated on the Form EV122.

After submission of the documentation and information requested on the Form EV122, the Immigration Department will contact the applicant and the sponsoring employer four to six weeks after the date of the second submission of the materials requested on the Form EV122 and inform them of the result.

If the visa application is approved, the applicant then returns to the Immigration Department (24th Floor) for employment visa endorsement, getting the employment visa issued on the same day.

Change of Sponsorship Applications

Change of sponsorship applications (i.e. seeking to change from one employer to another) follow very similar procedural methodologies and consideration processes as change of status applications, involve Forms ID91 and ID428B and are processed via the 5th Floor of the Immigration Tower instead of the 24th. The approvability test is just as onerous, however, and no significant advantage is given to an applicant merely because he is in possession of an employment visa sponsored by a previous employer. In general terms, however, if the new employment is in exactly the same field as the original employment and the ‘weight’ of the employers is similar, change of sponsorship approvals are usually quite readily forthcoming. Also, the longer the change of sponsorship applicant has been in Hong Kong the more accommodating the Immigration Department are in granting approvals to change employers. The Immigration Department states however, as a matter of policy, that such applications are not normally considered or approved. Current practice suggests otherwise but it should be remembered at all times that any such change of sponsorship approvals represent a positive act of discretion on the part of the Director of Immigration and his consent to change sponsoring employers should not be viewed as a matter of legal right