In general, persons who do not have the right of abode or right to land in Hong Kong may not take up employment or establish or join a business in Hong Kong unless they first secure an appropriate visa from the Hong Kong Immigration Department (HKID). It is important to remember that, although the Hong Kong Immigration Ordinance – the law relating to immigration in Hong Kong – lays down certain provisions as to the conditions under which foreign nationals may enter Hong Kong, many of the specifics, such as the eligibility criteria for the granting of employment and investment visas, are not prescribed by law. Rather, they are largely established and applied under HKID departmental policy with a certain amount of discretion on the part of individual Immigration Officers dealing with visa applications. Much, therefore, is not set in stone and it is perfectly possible for visa applications based on almost identical grounds to result in different outcomes. There are some prerequisites though, and the HKID says that it will “favourably consider” applications for both employment and investment visas if:
(a) the applicant has no known record of serious crime, and is not subject of a security objection; and either:
(i) he has a good educational background (this normally means possession of a first
(ii) he has a confirmed offer of employment in Hong Kong in a job which is relevant to
(iii) the remuneration package, including income, accommodation, medical and other degree in the relevant field, but in special circumstances good technical qualifications, proven professional ability and/or relevant experience and achievement may be acceptable); and his academic qualifications or working experience, and which cannot be taken up by the local workforce; and fringe benefits, is broadly commensurate with the prevailing market level for professionals in Hong Kong;
(b) he is in a position to make a substantial contribution to the economy of Hong Kong.
The above conditions (a)(i) to (iii), inclusive, relate to applications for employment visas, while (a) (excluding (i) to (iii)) and (b) together relate to investment visa applications. Criteria, which the HKID will consider when assessing applications for both, include:
(a) whether there is a genuine vacancy in Hong Kong for the prospective employee;
(b) what skills, knowledge and experience are needed for the job;
(c) whether the terms and conditions of employment are comparable with those in the local market;
(d) whether the applicant is suitably qualified and possesses experience relevant to the job;
(e) whether the job vacancy could be filled locally.
Establishing and running a business in Hong Kong, as elsewhere, can be a complex undertaking. Under the section of this report headed “Setting up Business in Hong Kong” I have provided some information on the subject, but this deals with the basics only and I would urge anyone seriously contemplating establishing a company in Hong Kong to thoroughly research the subject. The same is true of understanding the ramifications of obtaining an investment visa to establish or join a business in Hong Kong.
Generally, if a foreign national wishes to reside in Hong Kong for the purpose of investment by way of establishing or joining a company, he must first obtain an investment visa. If he is also an employee of the Hong Kong company in which he invests, the question of whether he would need an employment visa or an investment visa would depend on the extent of his holding in the company. As with the applicant for an employment visa, an investment visa applicant may first enter Hong Kong as a visitor, perhaps under the sponsorship of a Hong Kong business associate, his status subsequently changing as, through negotiation with the HKID, he prepares to establish himself in business. It is worth bearing in mind that the overriding principle which governs the granting of investment visas by the HKID is that the investment or business to be undertaken must be likely to substantially benefit Hong Kong. This effectively means contributing to Hong Kong’s economy and/or enhancing the employment prospects of the local workforce. The documents an applicant for an investment visa may be required to produce to the HKID include the following:
(a) a completed and signed application form ID9(E) 936 in respect of the applicant and any accompanying dependants;
(b) a copy of the sponsor’s Hong Kong identity card and /or travel document (if he is sponsoring the applicant as an individual);
(c) a copy of the sponsor’s Business Registration Certificate (if he is sponsoring the applicant as a company);
(d) a copy of the Business Registration Certificate of the company in which the applicant has invested or intends to invest;
(e) details, with proof, of the applicant’s proposed business activities in Hong Kong;
(f) details, with proof, of the applicant’s proposed investment in Hong Kong, his paid-up capital and source of funds;
(g) details of the personal particulars of all other directors of the company and their whereabouts, and reasons why the applicant’s presence is essential;
(h) the number of locals and expatriates employed or intended to be employed;
(i) details, with proof, of the applicant’s academic qualifications and experience relevant to the post he is to occupy – e.g. copies of degrees, diplomas, certificates and testimonials;
(j) details, with proof, of the applicant’s plans to co-operate actively with Hong Kong commerce and industry; and
(k) if applicable, evidence of the applicant’s past residence in Hong Kong.
As with an employment visa application, in addition to the above documents the HKID may require other information and/or documents, depending on the individual circumstances of the case.
Excerpted and adapted from the ebook “Pearl of the Orient: A Guide to Relocating, Living and Working in Hong Kong” by Michael Queeney.