Last week, a very good client of ours asked if I would be prepared to take a look at the file of an applicant who had been denied an employment visa a few weeks previously.
This applicant was not associated with our client’s company in any way. Rather he had worked for the business of one of our client’s friends.
Our client was asked by his friend, namely, the spurred employment visa sponsor, if I would be willing to take a look at the case file and advise if there was any merit in making a Reconsideration or a second application for this candidate (based upon what I might discover had gone wrong by a review of the paperwork).
So I did.
As you will read below, in actual fact, we were unable to help in this case after all.
However, the mistakes that were made by both the employer and the refused applicant offer a salutary lesson on how Hong Kong employment visa applications can fail by not being armed with essential knowledge of what the Immigration Department are looking for in order to grant an approval.
It also testifies to the need to know immigration law before you approach the HKID with your story.
The advice that I gave as a favour to our client is set out below.
Just enough details have been changed to protect the identity of the parties concerned, but the facts and advice is 100% original.
Here are the problems with DENIED APPLICANT’s immigration situation (in descending order of concern):
1 – Admission that he breached his conditions of stay while working for COMPANY X as a Working Holiday Visa holder.
Unfortunately, in your covering representations, you advise the HKID that he worked for you from January to July 2012. This period of six months was a breach of his conditions as stay for, as a German national, he was allowed to work for a maximum single stint of 3 months for any one employer in Hong Kong. Unfortunately, this inadvertent breach of immigration law also reflects poorly on COMPANY X as an immigration sponsor of his subsequent employment visa application.
2 – DENIED APPLICANT’s qualifications & experience.
As DENIED APPLICANT is not a graduate (possessing vocational qualifications only) in order to overcome this shortfall in his education, he must be able to show that he has significant prior employment experience in a managerial capacity. Alas, his CV shows him carrying a Manager title in his career to date of just 15 months. This is not sufficient to overcome the lack of qualifications to graduate level.
3 – His proposed title denotes him as a Manager of a role only.
Under the General Employment Policy, admission of ‘Professionals’ calls for the candidate to have supervisory responsibilities over other employees. However, your representations state at best that DENIED APPLICANT would be responsible for ‘directing delivery staff’ without elaborating how this was to involve day to day oversight of their work. Consequently, the role appears not to require direct supervision of the body of work of a junior/juniors and reads as though principally he would be working alone.
4 – In part of your argument supporting the need for his employment, you admit that if he were to be employed, then this would obviate “the need to contract …… additional part time delivery staff.”
This ‘justification’ whilst making good commercial sense, is never what the HKID wish to hear in allocating employment visa permissions to a foreign national. Conversely, they prefer to hear that the employment of the foreign candidate will create increased employment opportunities for local people.
5 – Admission that you at least suspect that the job can be filled locally by the fact of looking for a local replacement in the wake of DENIED APPLICANT’s departure from COMPANY X as a Working Holiday Visa holder.
This can be a double edged sword for, if they had not refused his application predicated on (1 = need to have a good immigration record) and (2 = his lack of suitable qualifications and experience) you might have expected the HKID to come back and ask for proof of the recruitment exercise along with copies of CVs from the locals who responded. This type of engagement by the HKID never typically ends positively for the proposed employer and should be avoided if at all possible.
DENIED APPLICANT will not get an employment visa under the sponsorship of COMPANY X or for any other employer in Hong Kong, until he has at least 5 years experience in a managerial capacity to make up for lack of a degree.
If you do end up finding a suitably qualified foreign national to take up this role, it is imperative you address the shortcomings in the argument as essayed above.
I also believe it would be good practice to write to the HKID and apologize for the oversight on your part of engaging DENIED APPLICANT previously for more than the three months he was entitled to work for you as a Working Holiday Visa holder. As his employer, COMPANY X had a duty to ascertain his lawful employability status and understand any conditions which were attached to his ability to take up employment in Hong Kong.
At the moment, in this regard, COMPANY X has a negative record which can be addressed by a formal acknowledgment of the mistake, an express apology and an undertaking that this kind of thing will not happen again at any stage in the future.
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