Pro Forma Visas for U.S.-China Dual National Children

Introduction

It’s tricky for a child who is a dual national of the United States and Mainland China to depart China. The child must present to the immigration inspector at the port of departure from Mainland China both (a) a travel document issued by the Chinese government and (b) a document authorizing their entry to the United States.

The most obvious strategy won’t work. The child cannot present their China and U.S. passports. That’s because the officer won’t recognize the child as a U.S. citizen. Under Article 3 of China’s Nationality Law of 1980, the Chinese government “does not recognize dual nationality for any Chinese national.”

So, here are the other options:

• China Exit and Entry Permit: The first option is to apply to the Public Security Bureau for an Exit and Entry Permit authorizing the child to leave and return to Mainland China within 90 days. When departing and returning, show the immigration inspector that permit and the child’s U.S. passport. The permit is issued based on the rationale that there is a “nationality conflict” preventing issuance of a China passport to a person who holds a foreign passport.
  
  
• China Travel Document: This is issued by to a dual-nationality child by a Chinese Embassy or Consulate abroad. It is valid for multiple entries and exits from China for a period of two years. It too is issued based on the rationale that there is a “nationality conflict” preventing issuance of a China passport to a person who holds a foreign passport.

• Transit Via a Third Country: Another option is to depart China with a PRC passport to a third country or region for which the child has a visa or where no visa is required. From there, the child can enter the U.S. with the U.S. passport.

• Renounce Chinese Citizenship: Renouncing Chinese citizenship may have pros and cons, which you should evaluate. If it makes sense to do so, a child whose application is approved will be issued a certificate of renunciation and can be granted a 60-day L (tourist) visa, during the validity of which the child can depart China.

• Pro Forma Visa: A final option, which is the topic of this article, is to apply for a U.S. “pro forma” visa to be stamped into the child’s China passport. The China passport serves as the required valid travel document, and the U.S. visa is sufficient evidence to satisfy the immigration inspector at the port of departure that the child is authorized to enter the United States. Upon arriving in the United States, however, the child must present their U.S. passport to the U.S. Customs and Border Protection officer.

Under normal circumstances, a U.S. visa cannot be issued to U.S. citizens. 9 FAM 301.3-3.  However, a “pro forma visa” can be issued to a U.S.-China dual national child “as a matter of courtesy” for the “sole purpose of facilitating departure from China directly back to the United States.” See email from the U.S. Consulate in Shanghai (Aug. 7, 2024), on file with the author. Generally speaking, adult dual national U.S. citizens will not be considered for a pro-forma visa. Unlike a real visa, the pro forma visa is not used to apply to a U.S. Customs and Border Protection (CBP) officer for admission to the United States. Instead, the holder must use their valid, unexpired U.S. passport to enter the United States.

Pro forma visas are not mentioned in the Code of Federal Regulations, in the current public version of the Foreign Affairs Manual, or on the website for the U.S. Embassy and Consulates in China. Still, this is a topic that families with children who are dual nationals of China and the United States should know about.

Historic Use of Pro Forma Visas

In the 1970s, pro forma visas were used by dual nationals of the Soviet Union and United States who obtained exit visas from the USSR but were unable to exit the USSR with their U.S. passports, according to a secret U.S. State Department cable released by Wikileaks.

One example of the use of a pro forma visa is the case of Victor Herman. In 1931, the Soviet Union had signed an agreement with Ford to build a factory there. Ford sent Samuel Herman to the Soviet Union to work on the project, and his U.S. citizen son Victor accompanied him. In 1938, Victor was arrested by the Soviet Union for “counter-revolutionary activities” and did a stint in a Siberian gulag. After release, the Soviet government claimed he was a Soviet citizen and for twenty years rebuffed his requests for permission to exit the Soviet Union. When the request was finally granted in 1976, according to a secret U.S. State Department cable released by Wikileaks, the U.S. Embassy in Moscow issued him a pro-forma visa to enable him to leave the USSR with a Soviet passport.

Another example of a pro forma visa involves Charles Puka. The New York Times in 1978 reported that he is an American citizen who went to visit his sister in the Soviet Union but was unable to leave. According to secret U.S. State Department cables released by Wikileaks, he entered the Soviet Union with a Soviet passport. As such, the Soviet government required that he depart with a Soviet passport. The U.S. Embassy in Moscow issued a pro forma visa in that passport to facilitate his departure.

Current Use of Pro Forma Visas

According to the January 2018 email newsletter from the U.S. Consulate in Shenyang (on file with the author):

Under normal circumstances, a U.S. visa cannot be issued to U.S. citizens. However, there are some cases in which a “pro-forma visa” can be issued to dual-national U.S. citizen minors for the purpose of enabling them to leave a country on their foreign passport.

Previously, the U.S. Embassy and Consulates in China were issued pro forma visas only for a child’s first departure from China, valid for only three months and a single-entry. See post by the U.S. Consulate in Guangzhou to CandleForLove (May 19, 2006); U.S. Consulate in Shenyang, January Newsletter, supra.

As of 2024, however, pro forma visas are being issued valid for multiple entries over a period of 10 years. This makes pro forma visas a more attractive option.

Application Procedures

The procedures to apply for a pro forma visa parallel those to apply for a B1/B2 (visitor) visa:

1. Complete a Nonimmigrant Visa Electronic Application (DS-160) form online Form DS-160, Nonimmigrant Visa Electronic Application, online.
2. Pay the visa application fee.
3. Create a profile on the USTravelDocs website at https://www.ustraveldocs.com/cn/en/nonimmigrant-visa/, choosing the B1/B2 visa classification.
4. Pay the nonimmigrant visa application fee applicable for B1/B2 visas.
5. Schedule an appointment at the U.S. Embassy or a U.S. Consulate in China.
6. At the time you schedule your appointment, you will see an onscreen message showing the earliest available appointment date, which includes expedited appointments. If there are humanitarian factors justifying an expedited appointment and such appointments are shown as available, you may make a request by completing the Expedited Request Form.  Then wait for an email response from the Embassy or Consulate.
7. One parent should attend the visa interview. To ensure admission to the Embassy or Consulate, notify them at least two business days before the interview of the parent’s name, passport number and date of birth, along with visa applicant’s name, passport number and date of birth of the visa applicant, and the visa appointment time.
8. Visit the U.S Embassy or Consulate on the date and time of the visa interview. If the applicant is under 14, they do not need to attend the interview.

Documents to bring to the appointment:

1. Printed copy of your appointment letter
2. Form DS-160 confirmation page
3. One passport-style photograph taken within the last six months
4. U.S. passport
5. China passport
6. Birth certificate
7. Consular report of birth abroad, if applicable
8. All prior passports
9. Applications without all of these items will not be accepted. 

Using the Pro Forma Visa for Travel

1. Electronic Visa Update System (EVUS): The visa will contain an annotation that the child must register with the EVUS. We recommend you enroll at least one week before you are scheduled to enter the United States. Enrollment will generally be valid for 2 years.
2. Airlines reservations: The tickets for flights departing and returning to Mainland China should both be purchased listing the name and nationality data in the child’s China passport.
3. Documents to show to the airlines and immigration inspectors:
   • Departing China: Show the China passport with the pro forma visa (not the U.S. passport) to check in for the flight, board, and go through China immigration inspection.
   • Arriving in the U.S.: Show the U.S. passport to the CBP inspector. If asked, you can show the China passport with pro forma visa too.
   • Departing the U.S.: Show the China passport with pro forma visa (not the U.S. passport) to check in for and board the flight.
   • Re-Entering China: Show the China passport (not the U.S. passport).

Feel free to schedule a consultation with our firm to discuss a pro forma visa application and other immigration and nationality law issues for your dual nationality child.