Visa Chargeability in Light of Executive Order on Hong Kong Normalization
Dated September 8, 2020
There has been a lot of speculation among members about whether the July 14, 2020 Executive Order on Hong Kong Normalization (PP 13936) impacts the visa chargeability of individuals born in Hong Kong. The order suspends the application of §201(a) of the U.S.-Hong Kong Policy Act of 1992, as amended, to §103 of the Immigration Act of 1990 and §203(c), §212(l), and §221(c) of the INA, as amended. (85 FR 43413, 7/17/20).
The concern among many stakeholders is that PP 13936 might make individuals born in Hong Kong subject to the chargeability of Mainland China as opposed to the Rest of World (ROW) category. Under §103 of the 1990 Immigration Act, Hong Kong is treated as separate from Mainland China for purposes of the number of immigrant visas available.
Virtual AC2020 DOS Open Forum:
At the July 23, 2020 Department of State (DOS) Open Forum during the 2020 AILA Virtual Annual Conference, the Department of State Visa Office indicated that DOS is still reviewing the implications of the Executive Order on Hong Kong Normalization and its impact on visa chargeability, but emphasized that Hong Kong’s status is derived from the 1990 Immigration Act, and that as long as that legislation survives, Hong Kong born individuals should continue to be counted in accordance with the existing statute.
Next Steps for Advising Your Clients:
Members are reminded that guidance provided during the DOS Open Forum is not considered official State Department guidance. The State Department has not yet provided any official statement to the public about the agency’s interpretation. When advising your clients concerning next steps for their applications, it is recommended that, where applicable, applicants take advantage of current availability under Hong Kong (or ROW) chargeability, in the event that the interpretation described above changes and these individuals become subject to the China preference categories.
As routine visa services continue to be phased in at consular posts across the globe, AILA’s Department of State Liaison Committee is keeping an eye on this issue. If you or your client experience any issues with the Department of State implementing PP 13936 in a way that negatively impacts the visa chargeability of individuals born in Hong Kong, please let AILA’s Department of State Liaison Committee know by submitting a “Report a Trend” survey, found on the committee’s page on AILA’s website.