Presidential Executive Order Ends Preferential Visa Policies for Hong Kong

The issue

An executive order signed Tuesday by President Trump will eliminate preferential visa treatment for foreign nationals born in Hong Kong as well as those who hold Hong Kong SAR passports. Affected individuals will be treated as nationals of the People’s Republic of China (PRC) with respect to immigrant visa quotas and nonimmigrant visa validity.

The executive order was issued in response to the PRC’s recent moves to establish greater control over Hong Kong.

How the executive order affects immigrant visa allocation

The executive order ends the treatment of Hong Kong as a separate foreign state from the PRC for purposes of immigrant visa issuance. Individuals who were born in Hong Kong who seek U.S. permanent residence will be counted – or “charged” – against the immigrant visa quota for the PRC. This means that they will be subject to the lengthy visa backlogs and wait times currently affecting the EB-1, EB-2, EB-3 and EB-5 immigrant visa categories for China, among other immigrant visa classifications.

How the executive order affects nonimmigrant visas

The executive order also means that Hong Kong SAR passport holders will be subject to visa validity and fee rules applicable to PRC passport holders. In many cases, this will mean visas issued for shorter validity periods or subject to additional formalities, as follows:

• H-1B and H-4 visas will be valid for a maximum of 12 months, reduced from 60 months.
• L-1 and L-2 visas will be valid for a maximum of 24 months, reduced from 60 months. L visas will also be subject to an additional reciprocity fee of $120.
• O visas will be valid for a maximum of three months, reduced from 60 months.
• B-1/B-2 visa validity will be unchanged at a maximum of 10 years, but Hong Kong passport holders will be required to register their visas in the Electronic Visa Update System (EVUS), as PRC nationals have been since November 2016.

The maximum validity period of F and J visas is unchanged.

What this means for employers and foreign nationals

The end of separate visa validity and chargeability policies for Hong Kong means that affected foreign nationals will face longer waiting periods for U.S. permanent residence. It will also reduce travel flexibility for affected H, L and O nonimmigrants because they will be required to renew their U.S. visas more frequently than in the past in order to reenter the United States.

The U.S. Departments of State and Homeland Security are expected to issue guidance on implementation of the executive order in the coming weeks. Fragomen will issue updates as more information becomes available on the impact of the order.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.