Are people born in Hong Kong now chargeable to Mainland China for US immigration purposes?

Question

Currently, Hong Kong is considered a separate foreign country of "chargeability" for US immigration purposes (see 9 FAM 503.2-3(A)), according to section 103 of the Immigration Act of 1990:

SEC. 103. TREATMENT OF HONG KONG UNDER PER COUNTRY LEVELS.

The approval referred to in the first sentence of section 202(b) of the Immigration and Nationality Act shall be considered to have been granted, effective beginning with fiscal year 1991, with respect to Hong Kong as a separate foreign state, and not as a colony or other component or dependent area of another foreign state, except that the total number of immigrant visas made available to natives of Hong Kong under subsections (a) and (b) of section 203 of such Act in each of fiscal years 1991, 1992, and 1993 may not exceed 10,000.

This allows people born in Hong Kong to not be subject to the long waits for visa numbers for people born in Mainland China in certain employment-based categories, as well as allowing them to be eligible for the Diversity Visa while people born in Mainland China aren't.

Recently, President Trump issued Executive Order 13936, which terminates Hong Kong's treatment under the United States-Hong Kong Policy Act of 1992, with respect to certain laws, including section 103 of the Immigration Act of 1990:

Sec. 2. Pursuant to section 202 of the United States-Hong Kong Policy Act of 1992 (22 U.S.C. 5722), I hereby suspend the application of section 201(a) of the United States-Hong Kong Policy Act of 1992, as amended (22 U.S.C. 5721(a)), to the following statutes:

(a) section 103 of the Immigration Act of 1990 (8 U.S.C. 1152 note);

22 USC 5722(a) says:

(a) Presidential determination

On or after July 1, 1997, whenever the President determines that Hong Kong is not sufficiently autonomous to justify treatment under a particular law of the United States, or any provision thereof, different from that accorded the People’s Republic of China, the President may issue an Executive order suspending the application of section 5721(a) of this title to such law or provision of law.

And 22 USC 5721(a) says:

(a) In general

Notwithstanding any change in the exercise of sovereignty over Hong Kong, the laws of the United States shall continue to apply with respect to Hong Kong, on and after July 1, 1997, in the same manner as the laws of the United States were applied with respect to Hong Kong before such date unless otherwise expressly provided by law or by Executive order under section 5722 of this title.

It seems that 22 USC 5721(a) just says that US laws will apply to Hong Kong after the handover to China the same way they did before the handover (when it was a colony of the UK), and this executive order, in suspending the application of 22 USC 5721(a), just applies US laws based on the situation now rather than as of June 30, 1997. But it seems to me that this would only matter if the law in question treated Hong Kong differently between when it was a British colony and when it is a Chinese SAR.

From reading the text of section 103 of the Immigration Act of 1990, it seems to make no distinction between Hong Kong before the handover and after the handover. It doesn't say that Hong Kong will only be treated as a separate country of chargeability up to June 30, 1997, nor that it only applied while Hong Kong was a British colony. It seems to provide for Hong Kong to continue to be treated as a separate country of chargeability regardless of what country governs it or what administrative status it has. I fail to see how the discontinuation of application of 22 USC 5721(a) affects this.

So my questions are:

1. Does this executive order cause people born in Hong Kong to be chargeable to China, or are they still chargeable to the separate country of "Hong Kong"?
2. If the answer to #1 is that Hong Kong is still a separate country of chargeability, then what was the point of including section 103 of the Immigration Act of 1990 in the executive order?
3. If the answer to #1 is that Hong Kong is still a separate country of chargeability, does the US executive branch have the power to, through any other means, make people born in Hong Kong chargeable to China, without a new Act of Congress?

Answer 1

This may now cause people born in Hong Kong to be chargeable to the People's Republic of China, but nothing actually happens until the regulations change. No act of Congress says that Hong Kong is a separate state. In general, if a person is born in China, they are legally treated as though they were born in China, same with Japan and all sorts of countries. 5721 states an exception saying (indirectly) that we will treat people born in Hong Kong as though they were not born in China. When the exception (which is realized in federal regulations) goes away, something literally has to take its place.

Under a previous version of 8 USC 1152, Hong Kong was specifically treated as a separate state w.r.t. chargeability, but that provision was amended out, leaving the law without a special provision for treating Hong Kong as a separate state. However, because of 22 U.S.C. 5721 continues that status -- until it is removed. When the exception per 5721 is no longer in force, no law allows treatment of Hong Kong as a separate state. The repealed law is mentioned because it is traditional to state what prior authorities existed and how they are changed.

There are no Congressionally-passed country specific laws regarding chargeability, Congress passed general laws which are interpreted and implemented by the executive branch. (8 USC 1201a was repealed). No change of statutory law is required, if the ensuing change of regulations (brought about by this order) remain within the scope of what Congress has authorized the president to do. The Department of State interpretation in 9 FAM 503.2-3(A)(b) is that "Section 103 of Public Law 101-649 made Hong Kong the equivalent of a foreign state beginning in FY 1991". Otherwise, China is a foreign state and Hong Kong is part of that foreign state, so Dep't of State may rewrite this regulation to remove the Hong Kong exception.

In light of the Hong Kong Autonomy Act of 2020, it is really hard to interpret that particular part of the order. That act (which Trump signed on the same day as the order) is mostly rhetoric and requirements for reports, but it clearly condemns China for breaking its obligations under the treaty and Chinese Basic Law. This is a case where the politics and law do not line up transparently.

Answer 2

None of the Visa Bulletins to date, including the ones issued after the executive order, mention treating Hong Kong as part of China. There is a column for "CHINA-mainland born"; it doesn't say "CHINA-mainland born and Hong Kong". There had been speculation that the November 2020 visa bulletin had been delayed due to the Hong Kong issue. But in the end, the VB was published without any changes to Hong Kong.

Now, the executive order was clearly written with the intent to abolish the special treatment for Hong Kong. So what happened? Most likely, the State Department determined after much deliberation that the President doesn't actually have such authority, so they simply ignored it.

As the OP mentions, Section 103 of the Immigration Act of 1990 provides that Hong Kong shall be treated as a separate foreign state of chargeability. user6726 claims that this was amended out later, but as far as I can tell, this is not true. The reason why there's no mention of Hong Kong in 8 USC §1152 is simply that §103 was never incorporated into the USC in the first place. (The text of Section 103, as given by the OP above, doesn't contain any language like "Section 202 (8 USC §1152) is amended ...".)

Assuming that §103 was never repealed, it remains in force, and Hong Kong is still a separate chargeability area regardless of whether or not 22 USC §5721 is suspended. The idea behind §5721 is that it prevented changes from going into effect that otherwise would have occurred due to the handover. To determine whether or not it applies here, you have to ask yourself: if the United States–Hong Kong Policy Act of 1992 had not been enacted in the first place, would Hong Kong natives have been chargeable to China after the handover, by operation of law? The answer is no: §103 would have prevented that. Suspension of §5721 can only restore the status of Hong Kong to what it would be without §5721—which would still be as a separate chargeability area—it cannot suspend §103.