U.S. Ends Preferential Immigration Treatment for Hong Kong

On July 14, 2020, the Trump Administration issued an executive order ending differential treatment for Hong Kong under U.S. law.  The order, effective immediately, directs government agencies to amend regulations within 15 days of the order, including trade and immigration regulations, as they pertain to special treatment of individuals born in Hong Kong and those holding Hong Kong SAR passports. The change in legal status for Hong Kong will have significant immigration consequences for many foreign nationals and their U.S. employers.

Impact on U.S. Immigration

The following changes are expected from the U.S. Department of State (DOS) and the U.S. Department of Homeland Security (DHS):

• Individuals born in Hong Kong who apply for U.S. permanent residence will now be counted under the annual quota of immigrant visas allocated for nationals of the People’s Republic of China (China), resulting in lengthy backlogs for green card issuance.
• Hong Kong passport holders will now be subject to the visa reciprocity rules that apply to Chinese passport holders, resulting in shorter visa validity periods and restricted travel for many nonimmigrant visas, such as B-1/B-2 (business visitor and tourist), H-1B (specialty occupation professional), L-1 (intracompany transferee) and O-1 (extraordinary ability) visas.
• Hong Kong passport holders will more likely to be deemed subject to a 2-year home residence requirement following a period of stay in the U.S. in J-1 (exchange visitor) and J-2 (dependent) status, which currently is common for Chinese passport holders.
• The order directs the elimination of the Fulbright exchange program with China and Hong Kong.
• Hong Kong passport holders who are employed in the U.S. in jobs that require access to certain export-controlled technologies will now be subject to the restrictions and higher level of background checks currently in place for nationals of China.

What U.S. Employers Need to Know

• Employees from both China and Hong Kong will face longer waiting periods for U.S. permanent residence.
• When international travel resumes, employees from Hong Kong will have less flexibility to travel due to shorter visa validity periods.
• A 2-year home residence requirement is likely to be imposed at the conclusion of new J-1 programs for individuals from Hong Kong and their dependents.
• It will be more difficult to employ individuals from Hong Kong in jobs that involve controlled technologies.

Background

Originally part of the People’s Republic of China, Hong Kong was a British colony from 1842 to 1997. In 1997, Hong Kong was transferred back to China as a Special Administrative Region, maintaining a separate government and economic system. The United States Hong Kong Policy Act of 1992 set forth various provisions to assist Hong Kong in maintaining its autonomy from China, including special treatment under U.S. immigration laws.  Specifically, individuals born in Hong Kong were treated separately and distinct from nationals of China.

In response to recent political events and the increased authority China has exerted over Hong Kong, the Trump Administration determined that Hong Kong is “no longer sufficiently autonomous to justify differential treatment” and ordered the suspension or elimination of various laws giving different and preferential treatment to Hong Kong and Hong Kong nationals.

Gibney will continue to monitor developments and provide updates as they become available. If you have questions or need specific legal advice, please contact your Gibney representative.