by Carolyn Lee

Dec 18, 2020

Despite the many uncertainties in the Covid-19 world, one thing is certain: Hong Kongers have emigration options. Countries including the U.K., Japan, and Australia have all expressed a desire to welcome Hong Kong residents into their countries. Most notably, the U.K. has offered Hong Kong BN(O)s a path to residency and citizenship through a new Hong Kong BN(O) Visa.

So how does the U.S. stack up in all this? What are the options for Hong Kong investors to emigrate to the U.S.?

Three Paths for Hong Kong Investors to the U.S.

The U.S. offers three paths to the Hong Kong investor for long-term stay in the U.S., two of which offer permanent residency or “Green Card” status. Once in Green Card status, the investor and qualifying dependents can normally apply for citizenship after 5 years. The three paths are outlined below:

EB-5 Visa

The EB-5 Visa is a Green Card, though conferred conditionally until final requirements are met. The basic requirements are a minimum investment of USD900,000 and job creation for 10 U.S. workers. Benefits extend to the principal investor, spouse, and children under 21. The investor need not operate or manage the EB-5 business and duties may be limited business policymaking.

E-2 Visa

The E-2 Visa is a visa for temporary stay, though it may be extended indefinitely, in some cases for decades. The investment amount requirement is flexible and is relative to the cost of a particular E-2 business. Although there is no investor treaty between the U.S. and Hong Kong, Hong Kong residents may have a second passport with a treaty country or may acquire one through treaty countries offering citizenship by investment (“CBI”).

EB-1-C Visa

The EB-1-C Visa is a Green Card for multinational executives and managers. This visa requires the principal investor to have executive experience for a company outside the U.S. for at least 1 year. This foreign company must be an affiliate of a U.S. company sponsoring the investor for an executive or managerial position with the U.S. company. There is no minimum investment requirement; rather, the requirement is keyed to qualifying employment by the U.S. company.

paths for hong kong investors

The Executive Order 13936 issued July 14, 2020 (the “HK EO”) concludes that Hong Kong “is no longer sufficiently autonomous to justify differential treatment in relation to the People’s Republic of China (PRC or China) under the particular United States laws and provisions”. The Executive Order has been interpreted to require Hong Kong residents to be treated without difference from nationals of China.

The question this poses for Hong Kong investors to the U.S. is whether the HK EO would place Hong Kong EB-5 investors in the mainland China queue rather than its separate queue established under the 1990 Immigration Act. The individual U.S. agencies have not yet issued interpretations of the HK EO. Until there is further confirmation, we do not yet know how Hong Kong EB-5 investors are affected. Applying for expedited processing of the pending EB-5 case is one way for Hong Kong EB-5 investors to potentially minimize the negative impacts of the HK EO on their cases.

The same analysis applies to Hong Kong investors considering the EB-1-C visa, which under application of the 1990 Immigration Act has no backlog, but under the HK EO would have the same backlog as mainland China.

The E-2 Visa is unaffected by the HK EO. Rather, the E-2 is favored under another Presidential Proclamation 10052 restricting entry of other temporary visa holders but excluding E-2 Visas.

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