Is Hong Kong considered part of Mainland China for EB-5 purposes?

Hong Kong is considered part of Mainland China for EB-5 purposes. Therefore, EB-5 investors from Hong Kong are in the same EB-5 visa queue and are subject to the same immigration regulations as investors from Mainland China.

For years, most EB-5 visas have been assigned to Mainland-born Chinese EB-5 investors. Nevertheless, this applicant group often experiences significant visa backlogs, which leave petitioners waiting years to complete the EB-5 visa process. Hong Kong lost its preferential treatment in July 2020, thus catapulting EB-5 petitioners from Hong Kong into the visa availability quagmire experienced by Mainland-born Chinese petitioners and worsening the visa backlog.

In July 2020, Donald Trump signed into law the Hong Kong Autonomy Act, which passed Congress unanimously. This was in response to the Chinese Standing Committee of the National People’s Congress’s June 2020 enactment of the controversial Hong Kong national security law. On the same day, Trump signed the Executive Order on Hong Kong Normalization, which derives its authority from the Act.

The Executive Order revokes Hong Kong’s special status conferred by the U.S.–Hong Kong Policy Act of 1992, which included a provision that the U.S. president could revoke Hong Kong’s special status if “Hong Kong is no longer sufficiently autonomous to justify differential treatment in relation to the People’s Republic of China.”

Both the Hong Kong Autonomy Act and the Executive Order on Hong Kong Normalization allow for the implementation of sanctions and asset freezes to attempt to dissuade the Chinese government from further decreasing the autonomy of Hong Kong. Sanctions may be authorized against certain foreign people and foreign financial institutions.

Unless the July 2020 executive order is reversed or the United States enacts additional legislation governing the special treatment of Hong Kong residents, EB-5 investors from Hong Kong will likely face significant delays in the EB-5 process.