HK Visa Trifles: Change of Job / Sponsorship
2021/10/21閱讀時間約 27 分鐘
“Workers have changed faster than the workplace”, said Josh Bersin, the prominent talent management professional. Now more than ever, talent retention has become a crucial ingredient for any business’ success and growth.
Job seekers are realistic after all: Is the remuneration package attractive enough? Is the welfare good enough? Is the corporate culture ethical and employee-friendly? Can I adapt to the local office culture?
The overall salary level, benefits, corporate culture and international work environment in Hong Kong’s have long been attracting a conglomeration of overseas professionals to enter the city’s job market, making the Hong Kong General Employment Policy (GEP) a popular and longstanding work visa program.
Because the employer is the sponsor for any Hong Kong work visa application, any change of job by the employee upon entry into Hong Kong on a work visa will require him/her – or the employer – to notify the Hong Kong Immigration Department (IMMD) by submitting a termination of sponsorship. In this article, we aim to examine different change of sponsorship scenarios and present a high level overview of the applicable procedures.
1. Resignation
A foreign employee (or the Hong Kong employer) is required to notify the IMMD if they have applied for a work visa to enter Hong Kong under the General Employment Policy but later finds the working environment unsatisfactory and quits the job. The notification can be made in written form or by fax to the IMMD Extension Section. If the employee has entered Hong Kong under the Admission Scheme for Mainland Talents and Professionals (ASMTP), or the Technology Talent Admission Scheme (TechTAS), notification should be made in written form or by fax to the IMMD Quality Migrants and Mainland Residents Section. It should be noted that once you have informed the IMMD, you are prohibited from taking up any paid or unpaid employment during your remaining stay, and you must leave Hong Kong at the end of that period.
2. Change of Job
If a foreign employee holding a Hong Kong work visa under the GEP wants to resign and take on a different local job, he or she MUST apply for a new work visa before the current period of stay expires. The new employer will become the new sponsor of the work visa application. The procedures for a job change application are similar to the ones of a new work visa but has a higher chance of approval if it is within the same industry.
For a Mainland Chinese employee who works in Hong Kong under the ASMTP, he or she should bring the relevant forms and supporting documents before the expiry of his or her period of stay to the IMMD Quality Migrant and Mainland Resident Section on 6/F, Immigration Tower, 7 Gloucester Road in Wanchai.
For a change of employment under the TechTAS, prior approval from the Director of Immigration is also required as the work visa is quota-based and can only be used for work that has been approved by the IMMD. If the newly appointed company does not have a TechTAS quota, a new application will have to be submitted under the GEP or ASMTP and will be adjudicated upon using the respective eligibility criteria. However, those with TechTAS top-tier talents* will only need to inform the IMMD of the change in writing.
* TechTAS top-tier talents are those who have been working in Hong Kong for at least 2 years and have reached an assessable tax of HK$2 million or above in the last year of assessment. Normally, they will be granted an extension of stay of 6 years without any other conditions.
It is important to note that it is prohibited to start a new job until your change of employment is approved by the IMMD.
3. Resignation and New Company Set Up
It is not uncommon to see a foreign employee enter Hong Kong with an employment visa under the GEP but then decide to set up his or her own business in the city. In such case, the employee must apply for and switch their employment-type to an investment-type visa called the Investment as Entrepreneurs, changing their status from a wage earner to a boss by the same means.
There used to be also the Capital Investment Entrant Scheme (CIES), but the program has been suspended since 2015 for various socio-political and economic reasons.
One does not need to enter first as an employee to apply for the Hong Kong entrepreneur visa. If an entrepreneur is interested in investing in Hong Kong by establishing a business or join an existing business, he or she may consider the scheme’s eligibility criteria and submit an application before entering Hong Kong.
The Investment as Entrepreneurs visa is available to investors who either plan to register, hasregistered, or is a shareholder of a business and who will be or is involved in the actual operations of the business in Hong Kong. The applicant must be a partial or sole owner of the business and must demonstrate that he or she is in a position to make substantial contribution to Hong Kong by submitting among other things a comprehensive business plan containing details about the business management, capital investment, financial projections and local job creation plan in Hong Kong.
The Investment as Entrepreneurs is not applicable to Chinese residents of the Mainland of China unless the applicant has been residing overseas for at least 1 year immediately before the submission of the application.
4. Job Change Under Other Visa Schemes
An employee who enters Hong Kong as an Imported Worker under the Supplementary Labour Scheme (SLS) is NOT allowed to change employment with another company or subcontractor, nor is he or she allowed to change position with the same employer. When the contract is terminated and no extension of stay has been applied for, the worker can only stay in Hong Kong for two weeks or until the expiration of the period of stay, whichever is shorter, and then must leave the country.
If you are a non-local graduate (Immigration Arrangements for Non-local Graduates, IANG), you do NOT need to re-apply for a work visa as long as you are employed by a company at the time of the application for extension of stay and can prove so by obtaining a confirmation from your employer.
Employers who intend to poach or hire foreign workers should also be aware of the following:
- Even if a newly appointed foreign employee is entitled to visa-free entry into Hong Kong, it is necessary to apply for a Hong Kong work visa prior to entry. The application will take approximately 1–2 months.
- Even if a foreign employee holds a valid work visa or even a HKID, it does NOT mean that he/she can take up the new position immediately. It is up to the employer to ascertain whether the status of entry of the foreign employee requires the prior approval from the Director of Immigration, whether he or she is free to engage in any employment in Hong Kong and that no conditions of stay have been breached. If necessary, the employer must provide proof of the company’s financial status and background information, as well as the employment contract with the employee, specifying the job description, salary and welfare, duration of employment, etc. The employer will submit the new employment visa application for the benefit of the foreign employee as his or her new sponsor. The new hire will not be allowed to start the new job until he or she has received formal approval from the IMMD. Failing to comply with these requirements may result in the prosecution of both the employer and the employee. In the event of a conviction, a fine and/or an imprisonment may be imposed.
- A work visa is needed even if the foreign employee is not paid or works on a volunteer or charity basis. The foreign employee can work only after the visa has been approved. Again, failing to comply with this requirement may result in the prosecution of both the employer and the employee.
- Hong Kong work visas will not be granted to those who are paid on a commission-only, part-time, or freelance basis.
- The positions held by expatriate employees usually require professional skills or management level experience. Their relevant work experience and academic qualifications will have a significant impact on the approval of such work visas. Therefore, it will be difficult for fresh university graduates to obtain an approval under the visa pathway.
- For most of the Hong Kong employment visa schemes, the employing company must also provide sound evidence that there are no qualified candidates in the Hong Kong job market to fill the vacant position.
- Last but not least, both employers and foreign employees must be cautious NOT to commit misrepresentation or provide falsified documents. IMMD may verify the submitted documents and even conduct on-site visits when deemed necessary. Once uncovered and reported, any current visa, issued entry permit or permission to stay will be immediately invalidated and the submitting parties may be subject to prosecution.
With the generational changes in the manpower market and better worldwide labor regulations, the concerns of talents have become more practical. As various labor markets also offer favorable employment and visa conditions to compete for global professionals, the work environment in Hong Kong is constantly stimulated by healthy competition. This motivates employers to upgrade their business practices and corporate culture alongside better pays and employee benefits. On the other hand, foreign workers entering the Hong Kong labor market also enhances the knowledge and technical skills of local employees in the long run.
Despite the geopolitical and economic instability of Hong Kong in the last few years, Christie’s – the leading international auction house – announced on July 27, 2021, that it will relocate its headquarter to Hong Kong in 2024, which is expected to open in the same year. It is expected that many new professional job openings in the relevant industries will become available. Apart from local professionals, foreign expertise and skills will be essential to the success of such undertaking. And Christie’s is not the only behemoth with such a plan. Citigroup will be establishing wealth centers in Hong Kong, London, United Arab Emirates and Singapore as part of its strategic deployment in Asia, with the Hong Kong center dedicated to serving high net worth entrepreneurs and corporations in Asia. Hong Kong’s strong demand for professionals and the resulting need for employment and work visas will not be easily put to a halt.
References
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