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EXPATRIATE SOLUTIONS (HK) LTD

 

It has been noted in recent times that there is a somewhat lax attitude towards obtaining entry visas in a timely fashion, with many individuals and corporations flouting the Immigration Ordinance and violating conditions of stay.  This carries a serious risk with heavy fines and imprisonment being the penalty for both individuals and companies alike. 

 

Whilst we are sure that the majority of Hong Kong’s major companies and their relevant departments are aware of the requirements of the Hong Kong Immigration department in respect of employment in Hong Kong, we would like to point out that a firmer stance is being taken by the Hong Kong Immigration Department regarding the application process for employing overseas staff.

 

Employment visa applications may take up to three months from time of submission. This processing period can quite easily stretch to four months and longer in the event that documentation as required by the Hong Kong Immigration Department is not submitted in a timely manner. Some of our experiences have shown that from the time of offering candidates a position of employment, candidates and sponsors  have taken as long as five weeks to provide the documentation required by the Immigration Department in its entirety. This practice only causes delays to the visa process.  An effective system such as those employed by ESL, along with production of all relevant documentation enables us to obtain approval for visas in a 2 to 4 week period. We believe this will assist our clients greatly in being able to get essential staff on board in the time frame specified, maximising the efficiency of their resource planning.

Change of Status Applications

During late 1998 the Immigration Department issued an announcement stating they are taking a tougher stance on change of status applications in a bid to curb overstaying and illegal workers.    These tougher measures have been encouraged in a effort to minimise unemployment and to alleviate pressure caused by Hong Kong’s growing population. Statistics show that approximately half the employment and dependent visa applications received by the Immigration Department are from applicants already in Hong Kong. The Immigration Department had sought to change policies before the handover, eliminating the mechanism by which a change of status application could be effected, but this was rebuffed by the security branch of the British administration.  Should such a policy change come into effect, worker’s would be forced to apply two to three months in advance of their arrival rather than arriving and starting work, a practice tolerated by immigration officials in the past to give employers flexibility. However, we must stress that this practice is illegal and subject to fines and imprisonment for both employers and employees alike.

Illegally Employing Workers

Employers are now required by law to inspect both Hong Kong identity cards and travel documents of prospective employees who are not permanent identity card holders to ensure they may be employed lawfully.

 

The Immigration Department levies heavy fines on illegal workers and employers as a deterrent. Under Section 41 of the Immigration ordinance, any person who contravenes a condition of stay in force in respect of him/her will be guilty of an offence and shall be liable on conviction to a fine of HK$50,000.00 and imprisonment for two years.

 

Employing any person who is not lawfully employable is an offence under Section 171 of the Immigration Ordinance. The maximum penalty is a fine of HK$350,000.00 and/or imprisonment for three years. 

 

The Immigration Department highlighted a recent judgment of the Court of Appeal, which held that the tariff of 15 months imprisonment would be applied to all employers who employ persons illegally, irrespective of the status of the job seeker. In other words, employers of visitors, contract workers or illegal immigrants are liable to the same immediate custodial sentence.  

 

Transfer of Employer / Change of Sponsor

 

Holders of current employment visas are required to apply for a transfer of employer / change of sponsor prior to commencing a new position. Until this transfer is approved, the employee may not take up his new position.  Doing so would render the employee and the employer in contravention of the Immigration Ordinance and subject to the fines and prison sentences outlined above.

Expatriate Solutions (HK) Ltd.

Room 'D' 13/F Tung Fong Building

155 Johnston Road, Wanchai, Hong Kong

Tel: (852) 9755-1784   Fax: (852) 2572-5261

info@expatsolutions.com.hk