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S. 4229 (116th): Hong Kong People’s Freedom and Choice Act


The text of the bill below is as of Jul 20, 2020 (Introduced). The bill was not enacted into law.


II

116th CONGRESS

2d Session

S. 4229

IN THE SENATE OF THE UNITED STATES

July 20, 2020

introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To reaffirm the principles and objectives set forth in the United States-Hong Kong Policy Act of 1992, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Hong Kong People's Freedom and Choice Act.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

Sec. 3. Findings.

Sec. 4. Statement of policy.

Sec. 5. Protection for Hong Kong residents in the United States.

Sec. 6. Differential treatment of Hong Kong residents for immigration purposes.

Sec. 7. Admission for certain highly skilled Hong Kong residents.

Sec. 8. Adjustment to lawful permanent resident status of certain nationals of the PRC.

Sec. 9. Reporting requirements.

Sec. 10. Strategy for international cooperation on Hong Kong.

Sec. 11. Sunset.

2.

Definitions

In this Act:

(1)

Appropriate congressional committees

The term appropriate congressional committees means—

(A)

the Committee on Foreign Relations of the Senate;

(B)

the Committee on the Judiciary of the Senate;

(C)

the Committee on Foreign Affairs of the House of Representatives; and

(D)

the Committee on the Judiciary of the House of Representatives.

(2)

Basic law

The term Basic Law means the Basic Law of the Hong Kong Special Administrative Region of the PRC.

(3)

Hong kong

The term Hong Kong means the Hong Kong Special Administrative Region.

(4)

NPC

The term NPC means the National People’s Congress of the PRC.

(5)

PRC

The term PRC means the People’s Republic of China.

(6)

Priority hong kong resident

The term priority Hong Kong resident means—

(A)

any lawful resident of Hong Kong or lawful permanent residents of Hong Kong who, as of the date of the enactment of this Act—

(i)

holds no right to citizenship or residency in any country or jurisdiction other than in the PRC, Hong Kong, or Macau; and

(ii)

has continuously resided in Hong Kong during the 10-year period ending on such date of enactment; and

(B)

the immediate family member of any person described in subparagraph (A).

(7)

Sino-British joint declaration

The term Sino-British Joint Declaration means the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, done at Beijing December 19, 1984.

3.

Findings

Congress finds the following:

(1)

The NPC has committed to pass national security legislation which, if enacted, would—

(A)

contravene the will of the people of Hong Kong whose constitution, the Basic Law, provides in Article 23 that the Legislative Council of Hong Kong shall enact legislation related to national security;

(B)

violate the PRC’s commitments under international law, as defined by the Sino-British Joint Declaration; and

(C)

cause severe and irreparable damage to the “one country, two systems” principle and further erode global confidence in the PRC’s commitment to international law.

(2)

The United States has a long and proud history as a destination for refugees and asylees fleeing persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

(3)

The United States also shares deep social, cultural, and economic ties with the people of Hong Kong, including a shared commitment to democracy, to the rule of law, and to the protection of human rights.

(4)

The United States has sheltered, protected, and welcomed individuals who have fled oppression of authoritarian regimes, including citizens from the PRC following the violent June 4, 1989, crackdown in Tiananmen Square, which has deepened ties between the people of the United States and individuals, regardless of nationality, who are seeking to contribute to a free, open society founded on respect for the rule of law.

(5)

The United States has reaped enormous economic, cultural, and strategic benefits from welcoming successive generations of scientists, doctors, entrepreneurs, artists, intellectuals, and other freedom-loving people fleeing Fascism, Communism, violent Islamist extremism, and other repressive ideologies, including Nazi Germany, the Soviet Union, Soviet-controlled Central Europe, Cuba, Vietnam, and Iran.

(6)

Offering prospective refuge to the people who have contributed the most to Hong Kong’s success would signal to the Chinese Communist Party that repression in Hong Kong would result in losing some of its immense wealth and talent to the United States.

(7)

A mid-2020 Brookings report states, Chinese officials see the United States’ continued ability to attract and retain Chinese talent as a serious impediment to their technological ambitions.

(8)

A 2009 report published in Issues in Science and Technology states, competition for [science and technology] brainpower . . . will become one of the key defining features of the West’s interactions with the PRC over the coming decades.

(9)

A major asymmetric advantage for the United States in its long-term, strategic competition with the Communist Party of China is the ability of people from every country in the world, regardless of their race, ethnicity, or religion, to immigrate to the United States and become United States citizens.

4.

Statement of policy

It is the policy of the United States—

(1)

to continue to reaffirm the principles and objectives set forth in the United States-Hong Kong Policy Act of 1992 (Public Law 102–383; 22 U.S.C. 5701 et seq.), including—

(A)

the strong interest [of the United States] in the continued vitality, prosperity, and stability of Hong Kong;

(B)

support for democratization is a fundamental principle of United States foreign policy that naturally applies to United States policy toward Hong Kong;

(C)

the human rights of the people of Hong Kong are of great importance to the United States and are directly relevant to United States interests in Hong Kong and serve as a basis for Hong Kong’s continued economic prosperity; and

(D)

Hong Kong must remain sufficiently autonomous from the PRC 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;

(2)

to continue to support the high degree of autonomy and fundamental rights and freedoms of the people of Hong Kong, as enumerated by—

(A)

the Sino-British Joint Declaration;

(B)

the International Covenant on Civil and Political Rights, done at New York December 19, 1966; and

(C)

the Universal Declaration of Human Rights, done at Paris December 10, 1948;

(3)

to continue to support the democratic aspirations of the people of Hong Kong, including the ultimate aim of the selection of the Chief Executive and all members of the Legislative Council by universal suffrage, as articulated in the Basic Law;

(4)

to urge the Government of the PRC, despite its recent actions, to uphold its commitments to Hong Kong, including—

(A)

allowing the people of Hong Kong to govern Hong Kong with a high degree of autonomy and without undue interference; and

(B)

ensuring that Hong Kong voters freely enjoy the right to elect the Chief Executive and all members of the Hong Kong Legislative Council by universal suffrage;

(5)

to support the establishment of—

(A)

a genuine democratic option to freely and fairly nominate and elect the Chief Executive of Hong Kong; and

(B)

open and direct democratic elections for all members of the Hong Kong Legislative Council by the end of 2020;

(6)

to support the robust exercise Hong Kong residents of the rights to free speech, the press, and other fundamental freedoms, as provided by the Basic Law, the Sino-British Joint Declaration, and the International Covenant on Civil and Political Rights;

(7)

to support freedom from arbitrary or unlawful arrest, detention, or imprisonment for all Hong Kong residents, as provided by the Basic Law, the Sino-British Joint Declaration, and the International Covenant on Civil and Political Rights;

(8)

to draw international attention to—

(A)

any violations by the Government of the PRC of the fundamental rights of the people of Hong Kong, as provided by the International Covenant on Civil and Political Rights; and

(B)

any encroachment upon the autonomy guaranteed to Hong Kong by the Basic Law and the Sino-British Joint Declaration;

(9)

to protect United States citizens and long-term permanent residents living in Hong Kong and people visiting and transiting through Hong Kong;

(10)

to maintain the economic and cultural ties that provide significant benefits to the United States and Hong Kong;

(11)

to coordinate with allies, including the United Kingdom, Australia, Canada, Japan, and the Republic of Korea, to promote democracy and human rights in Hong Kong; and

(12)

with respect to new national security legislation in Hong Kong, to review United States immigration, asylum, and residency laws to ensure that residents of Hong Kong who are fleeing persecution and seeking better opportunities will be welcomed in the United States.

5.

Protection for Hong Kong residents in the United States

Section 244 of the Immigration and Nationality Act (8 U.S.C. 1254a) is amended by adding at the end the following:

(j)

Protection for Hong Kong residents in the United States

(1)

Definitions

In this subsection, the terms Basic Law and NPC have the meanings given such terms in section 2 of the Hong Kong People's Freedom and Choice Act.

(2)

Designation

(A)

In general

Hong Kong shall be treated as having been designated under subsection (b)(1)(C), subject to the provisions of this subsection.

(B)

Period of designation

The initial period of the designation described in subparagraph (A) shall be for the 18-month period beginning on the date on which the Standing Committee of the NPC promulgates national security legislation with respect to Hong Kong that amends Article III of the Basic Law.

(3)

Aliens eligible

As a result of the designation described in paragraph (2), an alien who is a resident of Hong Kong is deemed to satisfy the requirements under subsection (c)(1) (subject to subsection(c)(3)) if the alien—

(A)

has been continuously physically present in the United States since the date of the enactment of the Hong Kong People's Freedom and Choice Act;

(B)

is admissible as an immigrant, except as otherwise provided in subsection (c)(2)(A);

(C)

is not ineligible for temporary protected status under subsection (c)(2)(B); and

(D)

registers for temporary protected status in a manner established by the Secretary of Homeland Security.

(4)

Consent to travel abroad

(A)

In general

The Secretary of Homeland Security shall give prior consent to travel abroad, in accordance with subsection (f)(3), to an alien who is granted temporary protected status pursuant to the designation described in paragraph (2) if the alien establishes to the satisfaction of the Secretary of Homeland Security that emergency and extenuating circumstances beyond the control of the alien require the alien to depart for a brief, temporary trip abroad.

(B)

Treatment upon return

An alien returning to the United States in accordance with an authorization described in subparagraph (A) shall be treated as any other returning alien provided temporary protected status under this section.

(5)

Fee

(A)

In general

In addition to any other fee authorized by law, the Secretary of Homeland Security is authorized to charge and collect a fee of $360 for each application for temporary protected status under this section 244 by a person who is only eligible for such status by reason of paragraph (2).

(B)

Waiver

The Secretary of Homeland Security shall permit aliens to apply for a waiver of any fees associated with filing an application referred to in subparagraph (A).

.

6.

Differential treatment of Hong Kong residents for immigration purposes

(a)

In general

During the 5-year period beginning on the date on which the President suspends, in whole or in part, special treatment of Hong Kong under United States law, Hong Kong will continue—

(1)

to be considered a separate foreign state apart from the PRC in accordance with section 103 of the Immigration Act of 1990 (Public Law 101–649; 8 U.S.C. 1152 note); and

(2)

to be treated as a separate foreign state for purposes of a numerical level established under section 202 of the Immigration and Nationality Act (8 U.S.C. 1152).

(b)

Responsibilities of the Secretary of State

(1)

Rulemaking

In order to facilitate the future verification of Hong Kong residency status of visa applicants from the PRC, the Secretary of State, not later than 1 year after the date of the enactment of this Act, shall issue regulations establishing a process for Hong Kong residents to register their status with embassies of the United States and the Department of State globally for purposes of adjudicating an individual’s claim to Hong Kong residency as part of a future visa application for entry to the United States, including through—

(A)

recording biometric data;

(B)

officially registering and scanning of birth certificates, residency cards, and other documentation establishing long-term residency; and

(C)

collecting other personal information, data, and records considered appropriate by the Secretary.

(2)

Guidance

Not later than 180 days after the date of the enactment of this Act, the Secretary of State shall issue guidance outlining actions to enhance the ability of the Department of State to efficiently share information with the United Kingdom and other allies for purposes of rapidly adjudicating residency of Hong Kong applicants for admission to the United States.

(3)

Briefing requirement

Not later than 180 days after the date of the enactment of this Act, the Secretary of State shall provide a briefing to the Committee on Foreign Relations of the Senate, the Committee on the Judiciary of the Senate, the Committee on Foreign Affairs of the House of Representatives, and the Committee on the Judiciary of the House of Representatives describing the plans to implement the requirements described in paragraphs (1) and (2).

7.

Admission for certain highly skilled Hong Kong residents

(a)

In general

Subject to subsection (c), the Secretary of Homeland Security, or the Secretary of State, in consultation with the Secretary of Homeland Security, may provide an alien described in subsection (b) with the status of a special immigrant under section 101(a)(27) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(27)) if the alien, or an agent acting on behalf of the alien—

(1)

submits a petition for classification under section 203(b)(4) of such Act (8 U.S.C. 1153(b)(4));

(2)

is otherwise eligible to receive an immigrant visa;

(3)

is otherwise admissible to the United States for permanent residence (excluding the grounds for inadmissibility specified in section 212(a)(4) of such Act (8 U.S.C. 1182(a)(4)); and

(4)

clears a background check and appropriate screening, as determined by the Secretary of Homeland Security.

(b)

Aliens described

(1)

Principal aliens

An alien is described in this subsection if the alien—

(A)

is a citizen of the PRC;

(B)

was born in, or has been a resident or permanent resident of, Hong Kong for at least 10 years as of the date of the enactment of this Act; and

(C)
(i)

has received a graduate diploma from an accredited institution;

(ii)

has completed undergraduate or graduate education in the United States; or

(iii)

is the sole or majority owner of a company with more than 50 direct employees or greater than $5,000,000 in assets.

(2)

Spouses and children

An alien is described in this subsection if the alien is the spouse or child of an alien described in paragraph (1).

(c)

Numerical limitations

(1)

In general

The total number of principal aliens who may be provided special immigrant status under this section may not exceed 50,000 for any of the 5 fiscal years beginning after the date of the enactment of this Act.

(2)

STEM degree

In admitting aliens under this section, the Secretary of Homeland Security, in consultation with the Secretary of State, may give priority to aliens who have earned a college degree in science, technology, engineering, or mathematics, including the physical and life sciences, computer science, engineering, technology, and medicine.

(3)

Exclusion from numerical limitations

Aliens provided immigrant status under this section shall not be counted against any numerical limitation under section 201, 202, 203, or 207 of the Immigration and Nationality Act (8 U.S.C. 1151, 1152, 1153, and 1157).

(d)

Protection of aliens

The Secretary of State, in consultation with the heads of other relevant Federal agencies, shall make a reasonable effort to provide an alien described in subsection (b) who is applying for a special immigrant visa under subsection (a) with protection or the immediate removal from the PRC, to the extent possible, if the Secretary determines that such alien is in imminent danger.

(e)

Eligibility for admission under other classification

No alien shall be denied the opportunity to apply for admission under this section solely because such alien qualifies as an immediate relative or is eligible for any other immigrant classification under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(f)

Timeline for processing applications

(1)

In general

Except as provided in paragraph (2), the Secretary of State and the Secretary of Homeland Security shall ensure that the United States Government takes all necessary actions incidental to the approval of applications submitted under subsection (a), including required screenings and background checks, are completed not later than 2 years after the submission of such applications by an eligible applicant.

(2)

Exception

Notwithstanding paragraph (1), the relevant Federal agencies may take additional time to process applications submitted under subsection (a) after the 2-year deadline to the extent satisfaction of national security concerns requires such additional time if the Secretary of Homeland Security, or a designee of the Secretary, not later than such deadline—

(A)

determines that the applicant meets the requirements for status as a special immigrant under this section; and

(B)

notifies the applicant of such determination.

8.

Adjustment to lawful permanent resident status of certain nationals of the PRC

(a)

In general

Subject to subsection (c)(1), if an alien described in subsection (b) applies for adjustment of status under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) during the period described in subsection (e)(2) of such section—

(1)

the alien shall be deemed to have had a petition approved under section 204(a) of such Act (8 U.S.C. 1154(a)) for classification under section 203(b)(3)(A)(i) of such Act (8 U.S.C. 1153(b)(3)(A)(i));

(2)

the application shall be considered without regard to whether an immigrant visa number is immediately available at the time the application is filed;

(3)

in determining the alien’s admissibility as an immigrant and the alien’s eligibility for an immigrant visa—

(A)

subsections (a)(5), (a)(7)(A), and (e) of section 212 of such Act (8 U.S.C. 1182) shall not apply; and

(B)

the Attorney General may waive any other provision of section 212(a) of such Act (other than paragraphs (2)(C), (3)(A), (3)(C), and (3)(E) of such section) with respect to such adjustment for humanitarian purposes, to ensure family unity, or if otherwise in the public interest;

(4)

the numerical limitation under section 202(a)(2) of such Act (8 U.S.C. 1152(a)(2)) shall not apply; and

(5)

section 245(c) of such Act (8 U.S.C. 1255(c)) shall not apply.

(b)

Aliens covered

An alien is described in this subsection if the alien—

(1)

faces a fear of persecution on account of his or her political opinion by the Government of the PRC or Hong Kong authorities;

(2)

was born in, or has been a resident or permanent resident of, Hong Kong for at least 10 years;

(3)

has initiated permanent residence in the United States (other than brief, casual, and innocent absences) during the period beginning June 1, 2019, and ending on the date that is 5 years after the date of the enactment of this Act; and

(4)

was not physically present in the PRC for longer than 90 days after the date he or she established such permanent residence.

(c)

Condition; dissemination of information

(1)

Not applicable if safe return permitted

Subsection (a) shall not apply to any alien if the Secretary of State determines and certifies to Congress, before the first day of the period referred to in subsection (a), that conditions in the PRC permit aliens described in subsection (b) to return to such the PRC in safety.

(2)

Dissemination of information

If the President does not made the certification described in paragraph (1) before the first day of the period referred to in subsection (a), the Secretary of Homeland Security, subject to the availability of appropriations, shall—

(A)

immediately broadly disseminate information respecting the benefits available under this section to aliens described in subsection (b); and

(B)

to the extent practicable, provide notice of such benefits to the last known mailing address of each such alien.

(d)

Exclusion from numerical limitations

Aliens provided immigrant visas under this section shall not be counted against any numerical limitation under section 201, 202, or 203 of the Immigration and Nationality Act (8 U.S.C. 1151, 1152, and 1153).

9.

Reporting requirements

(a)

In general

The Secretary of State, in consultation with the Secretary of Homeland Security and other Federal agencies, as appropriate, shall submit an annual report to the appropriate congressional committees that identifies—

(1)

the number of Hong Kong residents who have applied for admittance, have been admitted, and have been provided permanent residence in the United States during the preceding fiscal year, disaggregated by visa type or residence status, including refugee, temporary protected status, special immigrant visa, and legal permanent residence status provided for under this Act;

(2)

the number of denials or rejections of applicants, including a description of the basis for denial, disaggregated by the basis for denial and by visa type or residency status during the previous fiscal year;

(3)

the number of Hong Kong residents that have applied for political asylum during the preceding fiscal year, including the number of rejections, disaggregated by the basis for denial; and

(4)

other matters deemed relevant by the Secretary regarding efforts to protect and facilitate the resettlement of refugees and victims of political persecution in Hong Kong.

(b)

Form

Each report under subsection (a) shall be submitted in unclassified form and published on a text-searchable, publicly-available website of the Department of State.

10.

Strategy for international cooperation on Hong Kong

(a)

In general

It is the policy of the United States—

(1)

to support the people of Hong Kong by providing temporary relief, refugee status, and appropriate immigration incentives to Hong Kong residents if the PRC enacts legislation that renders certain Hong Kong residents at risk of persecution due to their political beliefs; and

(2)

to encourage like-minded nations to make similar accommodations for the people of Hong Kong fleeing oppression by the Government of the PRC.

(b)

Plan

The Secretary of State, in consultation with the heads of other Federal agencies, as appropriate, shall develop a plan to engage with other nations, including the United Kingdom, to carry out cooperative efforts—

(1)

to provide refugee and asylee protections for victims of, and individuals with a fear of, political persecution in Hong Kong, either by Hong Kong authorities or other authorities acting on behalf of the PRC;

(2)

to enhance protocols to facilitate the relocation of refugees and displaced persons from Hong Kong; and

(3)

to expedite information sharing, as appropriate, related to individual visa or travel document rejections of applicants from Hong Kong resulting from—

(A)

national security concerns;

(B)

fraudulent or corrupt practices related to immigration or victim protection, including refugee and asylee protections; or

(C)

fraud and corruption.

(c)

Report

Not later than 90 days after the date of the enactment of this Act, the Secretary of State, or his or her designee, shall submit a report containing the plan described in subsection (b) to the appropriate congressional committees.

11.

Sunset

This Act shall be effective during the 5-year period beginning on the date of the enactment of this Act.