From January to June 2016, a total of 16,463 visas were issued by the Hong Kong Immigration Department under the General Employment Policy (“GEP“).
The types of employment for which visas were issued included administrators/managers/executives, entrepreneurs, sportsmen, entertainers, teachers/professors and other professionals.
Given the number of foreign employees being employed, and the wide range of employers who are sponsoring them, it is essential for employers to understand their legal obligations in relation to employees holding visas under the GEP. Failure to comply with these requirements can have serious consequences for both the employer and the employee, and the Immigration Department is increasingly active in prosecuting breaches.
When is a GEP visa required?
An individual who possesses special skills, knowledge or experience of value to and not readily available in Hong Kong, and who wishes to enter/stay in Hong Kong for employment as a professional will be required to apply for a GEP visa.
Applying for the visa
The application process under the GEP is relatively straight-forward. Each applicant requires sponsorship by the employer, which involves providing details of the employment, as well as confirmation of unsuccessful efforts made to recruit suitable local candidates.
The processing time for an employment visa is around 4 weeks. Under Hong Kong law, the employer has a duty to ensure that its employees are lawfully employable. It is therefore essential that the employer does not allow or require the employee to commence employment while the application is being processed. This applies equally to existing employees who are transferred to Hong Kong to work.
Change of sponsorship
Where an employer wants to employ someone who already has a GEP visa, the employee is in fact not legally employable until there is a change of sponsor. Since the employee obtained his/her GEP visa on the basis of employment with the specific employer which sponsored them, there is a requirement for any subsequent employer to notify the Immigration Department of the intended change. The new employer is required to write and request approval to the change from the Immigration Department. Unless and until approval is obtained from the Immigration Department, the employee cannot be lawfully employed by the new employer.
There are significant monetary fines and (in the case of the employer’s directors and managers) custodial sentences involved where an employer or employee fail to adhere to the requirements for obtaining or maintaining a GEP visa.
Where an employer begins employment prior to visa approval or approval of change of sponsorship, the employer could be liable to a maximum fine of HK$350,000 and up to three years’ imprisonment.
Where an employee is in Hong Kong on a visitor’s visa awaiting approval, he/she could be charged for breaching their conditions of stay, the employee could be liable to a maximum fine of HK$50,000 and up to two years’ imprisonment. Employees who are found guilty are usually deported.
In the case of individuals, a custodial sentence is common. Non-compliance can have other adverse consequences for the employer, including the loss of a key employee as well as disruption to their business and significant reputational damage.
Most companies are at least broadly aware of these requirements. However, there are pitfalls for unwary or impatient employers – especially in relation to timing. It is important to take into account the time that the Immigration Department takes to process or approve visa-related requests, and to plan accordingly.
In order to prevent unlawful employment:
1) Consider whether the activities for which you are bringing an existing or new employee into Hong Kong require a visa – in most cases they will.
2) For foreign employees who are applying for a visa – ensure that the visa is approved prior to beginning any work. Do not, under any circumstances, allow or require an employee to start work when their visa has not been granted or transferred (as the case may be).
3) For employees who already hold a visa under another employer’s sponsorship – ensure that approval has been obtained from the Immigration Department for the change in sponsorship.
4) For any employees whose visa status is uncertain – take all practicable steps to ensure their lawful employability. According to the Immigration Department guidelines, this includes checking whether the employee holds a Hong Kong Identity Card and inspecting the employee’s travel document’s visa endorsement. If there is any doubt, do not commence employment.
5) Always make applications well ahead of time where possible, in order to prevent interruptions in your business as a result of an employee being unable to start work.
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