Overview
On May 29, President Trump announced in a White House news conference the US government would "begin the process" to revoke the "full range of agreements" providing the Hong Kong Special Administrative Region of China separate treatment from mainland China under US law. Although the president's announcement contained few specifics on the proposed measures or a timeline for their implementation—and no specific proposals have been advanced concerning Hong Kong’s treatment under the Immigration and Nationality Act (INA)—there are several areas where Hong Kong citizens enjoy separate treatment for US immigration purposes.
(For more information on the president’s May 29 announcement, click here to read Steptoe’s client advisory US to Take Steps to Revoke Hong Kong's Separate Status, Impose Sanctions, Enhance Export Controls.)
- Family- and Employment-based Visas: Annual immigrant visa allocations limit the number of foreign nationals who can become US permanent residents (“green card holders”) each year. This system includes per-country limitations and, thus, is favorable for Hong Kong nationals, as compared to (mainland) Chinese nationals.
The US Department of State (DOS) lists Hong Kong as independent from mainland China for purposes of country of chargeability immigrant visa distribution. As a result, Hong Kong nationals generally face lesser visa number availability backlogs than nationals of mainland China, particularly in employment- based categories. As a densely-populated country with high rates of US immigration, it is common for Chinese nationals to face backlogs in the 5 to 10-year range for an immigrant visa number needed to obtain green card status.
- EB-5 Program: The EB-5 Immigrant Investor Visa Program provides a method for eligible Immigrant Investors to become lawful permanent residents through qualified investments. These investments must be a minimum of USD$900,000 in a US business that will create at least ten jobs for US workers. This category is heavily used as a path to US permanent residence for wealthy Chinese and Hong Kong citizens. The difference is tied to the immigrant visa allocation system, discussed in item 1, above. As a result of per-country limits and the high usage of the EB-5 program by Mainland Chinese nationals, these would-be immigrants typically have to wait for many years--typically eight to 10 years—to obtain green cards due to backlogs. Hong Kong nationals generally do not face these visa number availability backlogs, and, thus, in large part, only face paperwork processing times. While there are many variables, a citizen of Hong Kong could potentially complete the EB-5 process within two to three years.
- Reciprocity Schedule: The US Department of State (DOS) is required to establish visa policies on a country-specific, reciprocal, basis. This reciprocity applies to visa validity periods, the number of admissions permitted, and applicable visa fees. The specific terms for each class of US visa are, in part, based upon the treatment given to US citizens for similar visa types. Citizens of countries which place restrictive terms on visas for US citizens face similar restrictions and limitations in connection with US visas. Similarly, the US expects reciprocal treatment if it entertains more favorable visa durations and other terms for citizens of a particular country. At this time, Hong Kong has separate, and more favorable, visa reciprocity terms than China. Hong Kong nationals enjoy full, maximum, visa validity periods. Mainland Chinese nationals have more restrictive terms in many commonly-used visa categories. For example, an L-1A visa for multinational executives from Hong Kong is valid for five years; the same visa category granted to an applicant from Mainland China would have a two- year validity period.
- Travel Suspensions, COVID-19 and Economic: As of this writing, there are COVID-19 related travel suspensions for Mainland China, as well as Iran, the UK, Ireland, the Schengen region, and Brazil. The US, Canada and Mexico also have mutually-agreed upon COVID-19 related travel suspensions at the land borders. In addition, as of June 1, there is a China-specific suspension of certain F-1 (student) and J-1 (exchange visitor) in an effort to limit access to certain intellectual property. Hong Kong is not currently subject to any country-specific travel ban. For more information about travel suspensions, see our recent alert, https://www.steptoe.com/en/news-publications/revisiting-us-travel-suspensions-brazil-added-sports-exempted-economy-sets-future-policy-tone.html.
- Visa Lottery: The US allocates 55,000 immigrant visas each year through the Diversity Visa (DV) lottery. Eligibility for entry for selection in the DV lottery is limited to individuals from countries with historically low rates of US immigration. Hong Kong nationals are eligibility to participate in the DV lottery, due to being considered as separate from China by the DOS for visa allocation purposes. Mainland China, as a country with historically high rates of US immigration is not eligible for the DV lottery program.
- Asylum and Other Relief: Given the current political situation, the US government may consider granting asylum or other forms of immigration relief to eligible Hong Kong nationals. Currently, no specific proposals have been made public. However, Secretary of State Mike Pompeo suggested some form of immigration opportunity may be provided to Hong Kong nationals, in remarks to the American Enterprise Institute.
