Employer sponsorshipi Sponsor-based employment visas
Hong Kong's general policy is to grant employment visas to individuals who are professionals with specific skills, knowledge or work experience of value that is not readily available in the local labour market. Including the pilot fast-track programme of TechTAS, there are currently five major categories of sponsor-based employment visas:
a the GEP, which is applicable to foreign nationals and Chinese nationals who have obtained overseas permanent residency or have been physically abroad for at least one year immediately prior to submitting an application. Chinese residents of the mainland and nationals of Afghanistan, Cuba, Laos, North Korea, Nepal and Vietnam are precluded from applying for employment visas under the GEP in Hong Kong;
b the Admission Scheme for Mainland Talents and Professionals (ASMTP), which is only applicable to Chinese nationals who are mainland residents. Applications under this category are processed by the Mainland Residents Section of the HKID. In an ASMTP application, the Chinese national applicant must submit a letter of consent as part of the visa application form. The letter of consent must be completed, signed and stamped by the applicant's present work unit or employer in mainland China, or other relevant mainland China authorities where his or her personnel or employment records are kept. The purpose of the letter of consent is to release the applicant to work in Hong Kong should the application be approved. In 2018, a total of 13,768 applications were approved under the ASMTP, mainly in employment sectors for the arts and culture, academic research and education, and financial services;
c the IANG, which is an employment visa category specifically tailored for applicants who are non-local graduates who have obtained an undergraduate degree or higher qualification in a full-time and locally accredited programme in Hong Kong. The IANG permits them to stay or return to work in Hong Kong. This scheme is quota-free and non-sector specific, and does not apply to nationals of Afghanistan, Cuba, Laos, North Korea, Nepal or Vietnam. With effect from 14 May 2018, the IANG has been extended to cover non-local students who have obtained an undergraduate or higher qualification in a full-time locally accredited non-local programme in Hong Kong. In 2018, 10,150 non-local graduates were given permission to stay or return and work in Hong Kong through the IANG visa category;
d the training visa, which is applicable to both foreign national and Chinese national mainland resident applicants with lesser professional experience. It is convenient for overseas companies that wish to employ junior employees in their offices in Hong Kong on short-term training or internship programmes. Nationals from Afghanistan, Cuba, Laos, North Korea, Nepal and Chinese mainland residents are precluded from applying for training visas, with the exception of mainland Chinese applicants who are employees and business associates of well-established multinational companies based in Hong Kong;and
- TechTAS (see Section I.iii), explained in further detail below.
The TechTAS scheme is applicable to residents of Mainland China but does not apply to nationals from Afghanistan, Cuba, Laos, North Korea, Nepal and Vietnam. Eligible technology companies and institutes must first apply to the ITC for a quota, then submit an application to sponsor an eligible applicant to apply for an employment visa or entry permit to the HKID within the six-month quota-validity period.
The TechTAS scheme requirements specify that the applicant must be:
- employed as a full-time employee in Hong Kong by the employing company or institute;
- engaged principally in conducting R&D work in the areas of biotechnology, artificial intelligence, cybersecurity, robotics, data analytics, financial technologies or material science; and
- a postgraduate in science, technology, engineering or mathematics (STEM) subjects from a well-recognised university, which should be listed among the top-100 universities for STEM-related subjects in the latest world university ranking publications (including Quacquarelli Symonds, Shanghai Jiao Tong University Rankings, and Times Higher Education.
The ITC also stipulates that in the application for a quota under TechTAS, the sponsoring company or institute must fulfil the ITC's requirement to employ new local employees in technology-related work. The sponsoring company or institute must also be:
- a tenant, incubatee, grantee or occupant of the Hong Kong Science and Technology Parks Corporation (HKSTPC) (including Hong Kong Science Park, InnoCentre, or the industrial estates managed by HKSTPC) or Hong Kong Cyberport Management Company Limited (Cyberport); and
- engaged in the area of biotechnology, artificial intelligence, cybersecurity, robotics, data analytics, financial technologies or material science.
As at the end of 2018, a total of 29 applications under TechTAS had been received, of which 24 had been approved.i Work permits
There is no separate 'work permit' process to obtain an employment visa or authorisation. Instead, the sponsoring employers lodge employment visa applications directly with the HKID.
Employment visa applications in the categories of GEP, ASMTP, training visas and TechTAS are lodged on the basis that there is a local sponsoring employer. Most applications under the GEP are lodged directly with the HKID by the sponsoring employers but they can also be submitted to the nearest Chinese embassy or consulate overseas where the applicants reside. However, for cases concerning ASMTP and TechTAS, applications must be lodged directly by the sponsoring employers in Hong Kong only. For routine GEP and ASMTP applications filed by a company with a well-established and reputable track record can be approved in four to six weeks. For newly established entities, it may take a longer period for the HKID to assess the application, and there may be a request for additional support documents to demonstrate the financial viability of the sponsoring employer.
As TechTAS is a pilot fast-track scheme, the HKID has pledged a processing time of two weeks for a well-prepared and documented application. Because of the sector-specific nature of the employing companies or institutes, and applicants for TechTAS in high-level and complex technologies, the HKID stipulates that work experience is not compulsory for the applicant with a master's or doctoral degree, although a bachelor's-degree applicant should possess a minimum of one year's work experience in the relevant technology area.
In general, both new hires and intra-company transferees should meet the GEP application criteria set out by the HKID, but a greater degree of flexibility may be given to intra-company transfer applications based on the fact that these applicants may have specialised knowledge concerning the proprietary products and operations of their employer.
For the IANG visa, non-local graduate applicants who submit applications to the HKID within six months of the date of their graduation are classified as 'non-local fresh graduates'. Those who submit applications beyond six months of the date of their graduation are classified as 'returning non-local graduates'. Non-local fresh graduates who wish to apply to stay and work in Hong Kong are not required to have secured an offer of employment upon application. However, returning non-local graduates who wish to return to work in Hong Kong are required to secure an offer of employment upon application. An IANG visa can be approved for a maximum initial period of 12 months.
For the GEP, the ASMTP and the TechTAS the maximum validity of an initial approved visa is 24 months. Once the application is approved, the HKID will inform the local sponsoring employer or an authorised representative in Hong Kong by fax or email for collection of an entry visa sticker label with payment of the visa fee at the HKID. For the GEP applicant, the entry visa sticker label is valid for three months from the day of issuance, and must be forwarded to the applicant overseas for him or her to affix to a blank visa page of his or her passport. The applicant is also required to travel to Hong Kong to activate his or her Hong Kong employment visa within the three-month period.
For Chinese mainland residents applying for an employment visa under the ASMTP or the TechTAS, after the entry visa label is collected and sent to the applicant, he or she must bring along the entry visa sticker label issued by the HKID to apply for an exit endorsement from the Public Security Bureau where his or her household registration is kept in mainland China. The exit endorsement will be issued on an exit entry permit (EEP), which is a specific Chinese travel document issued to Chinese nationals who are mainland residents for their travel to Hong Kong and Macau. The old type of EEP was a booklet in which the applicant would affix the entry visa sticker label to a blank visa page of his or her EEP bearing the exit endorsement and travel to Hong Kong to activate his or her Hong Kong employment visa. The new type of EEP is an electronic card. In this case, the applicant will not affix the entry visa label to his or her EEP card. He or she must simply travel to Hong Kong with his or her EEP, bearing the exit endorsement from the Public Security Bureau in China, and present it with the entry visa sticker label to the HKID for activation of the Hong Kong employment visa within three months of the date it is issued.
The HKID seldom turns down well-prepared employment visa applications from established employers on behalf of well-qualified prospective employees who will be paid the prevailing salary for the sponsored position. If there are issues that need to be clarified, the HKID will contact the local sponsoring entity directly, or its representative, by fax, letter or telephone to request additional support documents or explanations to further support the application. In special circumstances, a well-prepared application with a well-qualified sponsoring employer and applicant may still be rejected by the HKID because of other considerations, such as the prospective employer having a record of sponsoring candidates with questionable qualifications, and potential security issues raised by the nationality of the applicant. However, reconsideration may be initiated for a rejected case if the sponsoring employer and applicant are able to provide new and additional evidence and documents to substantiate the business necessity of having the applicant in the proposed position.ii Labour market regulation
If a position to be filled by a foreign national is a senior post requiring an academic degree, or years of professional or management experience, or both, and the position involves a high remuneration package, the HKID is unlikely to challenge the need for the foreign national and take the position that a candidate is available locally.
In addition, it should be noted that while the general factors to be considered before an employment visa application is approved are applicable to all cases, intra-company transfers of personnel are generally adjudicated by a more relaxed standard. However, the HKID will scrutinise and challenge the proffered salary if it seems not to be commensurate with prevailing local salaries. This is particularly true where companies try to bring in engineering, telecommunications or computer professionals from the Philippines or India to fill 'line-level' positions or where the prospective employee's bachelor's degree may not be considered the equivalent to a tertiary degree recognised internationally.
Apart from the mainstream employment categories such as the GEP, the ASMTP and the TechTAS, the SLS continues in existence for the importation of labour at technician level or below. The SLS is a programme administered by the Labour Department of the HKSAR. The employer is required to demonstrate genuine difficulties in finding suitable employees locally before it can receive approval-in-principle to import workers from outside Hong Kong.
In an SLS application, after obtaining approval-in-principle, the employer must arrange for the prospective worker to submit an entry visa or permit application within three months of the date of the approval-in-principle, as the approval-in-principle will automatically lapse within the prescribed period if the application is not submitted in time.
Imported workers under the SLS must have suitable experience and qualifications for the position proffered, should be offered comparable terms and conditions of employment to those offered to local employees, and the employer must demonstrate financial ability to employ the applicants, provide suitable accommodation and guarantee the workers' maintenance as well as repatriation upon termination of the contract.
Note that imported workers under the SLS are not permitted to bring their dependants into Hong Kong. Further, nationals from Afghanistan, Cuba, Laos, North Korea, Nepal and Vietnam are not eligible to apply.iii Rights and duties of sponsored employees
An employee with an approved employment visa may only work for the sponsoring employer. It is a breach of the conditions of stay for a person on an employment visa to take up a position with a different employer without first obtaining 'change of employer' authorisation from the HKID.
A person who violates his or her conditions of stay commits a criminal offence and, upon conviction, can be fined HK$50,000 and subject to a maximum of two years' imprisonment under Section 41 of the Immigration Ordinance (Chapter 115).
Under the Immigration Ordinance, an employee who has ordinarily resided in Hong Kong for a continuous period of seven years on a qualifying employment or residence visa, such as Entry for Investment as Entrepreneurs, QMAS, GEP, IANG and TechTAS may apply for permanent residence or the 'right of abode'. However, foreign domestic workers holding employment visas are not eligible to apply.
A person is regarded as 'ordinarily resident' in Hong Kong if he or she remains in Hong Kong legally, voluntarily and for a settled purpose and does not cease to be 'ordinarily resident' if he or she is temporarily absent.
The application for right of abode is made by submitting Form ROP145, 'Application for Verification of Eligibility for Permanent Identity Card'. Absences from Hong Kong, especially for a continuous period of six months or more, must be specified on the application form and supplemented with an explanation giving reasons for the absence. The factors to be considered in determining whether the absence is interruptive of 'continuous ordinary residence' include the reason, duration and frequency of any absence from Hong Kong, whether the applicant has a habitual residence in Hong Kong, whether he or she is employed by a HKSAR-based company; and the whereabouts of the immediate members of his or her family (spouse and minor children).
The HKID will consider all the facts of the case and barring circumstances that would seem to indicate that the applicant is no longer habitually a HKSAR resident, employment visa holders or their dependants will usually have their cases approved in four to six weeks.