Permanent Resident Employment 'Rights'
Sun, 2010-05-02 17:50 — Oldish China Hand
You read a lot about employers only being allowed to recruit from overseas if they are unable to fill a position locally. I often wonder how rigorously the Immigration Dept. checks on this. I accept that they may ask for proof of a job search having been completed etc. but surely if a company really wants a certain individual from overseas they can probably fabricate some very unique skill set that just isn't providable by anybody else. My question then is this - as a permanent resident if you knew that a company was hiring for a position that you were perfectly capable of filling but which went to somebody non-resident - do you have any right to complain? And if you did - what would the likely repurcussions be for both yourself and the prospective employer?
re: Permanent Resident Employment 'Rights'
Interesting question. Can anyone that has hired an expat tell us more about how carefully Immigration check on your reasons for not hiring a local resident?
As you say, it seems like it would be quite easy to concoct some conditions that are unique to the person you want to hire. This Baker & McKenzie document gives one example:
The applicant must prove that his or her services or expertise are unique such that the employer cannot find someone locally in Hong Kong to fill the position sought to be filled.
It could be because the applicant:
In the case of an intra-company transfer, the above is usually satisfied by the fact that having worked in the overseas affiliate office, the applicant has gathered intrinsic knowledge of the internal administration and operation of the company and this type of knowledge is not readily available locally in Hong Kong.
The Immigration Dept's description is open to interpretation too, giving them a lot of flexibility. See III.21.d here, which says an employment visa application may be favourably considered if:
d. the applicant has a confirmed offer of employment and is employed in a job relevant to his academic qualifications or working experience that cannot be readily taken up by the local work force;
Then there's what you want to achieve from this. If you 'win', and the company had to employ you, I can't think you'd have a very happy time working there.
work visa
I think most countries have similar visa requirements to protect their own citizens. The US has quota on guest worker visa from various countries as well. In reality, these rules are often by passed if needed. During the nuclear winter of the Tech industry here is the US around year 2000, a lot of software engineers I worked with were out of a job some permanently. Yet at the same time, companies were bringing in H1B1 visa holders from India and other countries. It is still going on today. There are similar language on the books requiring companies to staff with local talent but the loop holes are fairly large, I would say.