On July 14, 2020, President Trump issued an Executive Order that has redefined the country’s relationship with Hong Kong. The Executive Order appears to be in retaliation to the Chinese government’s legislative actions in May that imposed national security measures on Hong Kong. Specifically, the President denounced the actions of the People’s Republic of China (PRC or China) as “arbitrary” and PRC’s “latest salvo in a series of actions . . . [to deny] autonomy and freedoms . . . to the people of Hong Kong.” Under authority set forth in the United States-Hong Kong Policy Act of 1992, the Executive Order ostensibly rescinds the United States’ historical policy of treating Hong Kong as a separate entity from the PRC, forging broad reaching consequences on diplomatic relations, international trade, and immigration.

1.  How Will The Executive Order Affect US-Hong Kong Immigration?

The Executive Order removes Hong Kong’s preferential treatment as a separate customs territory.  The impacts of this new policy under the Trump Administration include the following:

i.  The United States will now apply the same rules of chargeability against Hong Kong Chinese Special Administrative Region (SAR) nationals as it does to China-Mainland Born nationals;

ii.  Hong Kong is removed from its participation in the Diversity Visa Program;

iii.  Hong Kong is removed from the Visa Waiver Program as it applies to Guam and the Commonwealth of the Northern Mariana Islands (CNMI); and

iv.  Hong Kong nationals will be held to China’s visa reciprocity schedule.

These provisions of the Executive Order have significant impacts on certain Hong Kong Chinese SAR nationals and their ability to immigrate to the United States.  In addition to no longer being eligible for certain visa waivers or diversity visas, Hong Kong Chinese SAR  will now be subject to the significant backlogs of available immigrant visas in the “China-Mainland Born” preference categories.  These backlogs are often several years longer than those of the “All Chargeability Areas” category, under which Hong Kong previously fell.  Additionally, Hong Kong Chinese SAR  will be subject to the entrance and time period limitations of the China nonimmigrant visa reciprocity schedule.  This means, for example, that a prospective H-1B worker from Hong Kong, who would have previously been eligible for a five-year visa, will now only be eligible for a one-year visa.

The Executive Order also terminates the Fulbright exchange program for future exchanges by participants traveling both from and to China or Hong Kong. The Fulbright Program is a global educational and cultural exchange program for students, scholars, artists, teachers, and professionals seeking to study, teach, or pursue research and professional projects around the world. The program was signed into law by President Truman in 1946, and is currently operated in partnership with more than 160 countries worldwide.

2.   What Should Employers Be Thinking About?

These changes will now need to play into the calculus for US employers who currently or will prospectively employ Hong Kong Chinese SAR in the United States. The new policy will significantly impacts the speed at which employers are able to secure long-term immigration statuses for their Hong Kong-born employees and the frequency with which the nonimmigrant statuses of these employees need to be reviewed. Employers should identify the population of Hong Kong Chinese SAR working in the United States, the visa statuses under which those employees were admitted, and the impacts to the ongoing validity of those statuses causes by the shift in chargeability and reciprocity.

Although the Trump Administration’s termination of the Fulbright Program does not largely affect employers, the decision to end this long-standing exchanging program is another signal of chilling relations between the United States and China and US immigration policy at large. Individuals with any vested interest in immigration to the United States must remain apprised of the constant, ongoing swings policy that we have seen over the last several months.

The State Department’s most recent guidance on the Executive Order stated that Hong Kong will continue to be considered a separate customs territory as long as the Hong Kong-US treaty remains in effect. Further information regarding implementation has not yet been announced; however, the order gives US immigration agencies just fifteen days to take all appropriate actions necessary to execute the new policy. Please continue to follow our blog for updates and ongoing changes in US immigration.