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:
- 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"?
- 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?
- 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?