Does China Still Consider You Chinese? Dual Nationality and Travel to China
An American passport does not always settle the question of whether China considers you Chinese. That can surprise a Chinese-born businessperson who has become a naturalized American, and it can surprise parents whose child was born in the United States and has never held a Chinese passport. The consequences can be serious. China may require an American citizen to enter on Chinese travel documents, refuse to recognize that person’s American citizenship, or deny access to American consular officials if the person is detained. An American passport also provides no guarantee against being prevented from leaving China.
I understand why so many Chinese businesspeople want American citizenship. It gives them the freedom to relocate and to build a permanent home and future for their families outside China. What worries me are the people who obtain American citizenship without understanding what happens to their Chinese nationality, particularly those who keep using Chinese identity documents or assume their American citizenship will protect them if something goes wrong in China.
Does China Allow Dual U.S.-Chinese Citizenship?
The United States generally permits dual citizenship. Americans can acquire another nationality without automatically losing their U.S. citizenship. The naturalization oath requires new citizens to renounce allegiance to foreign states, but the United States does not treat that oath as ending their other nationalities. The U.S. State Department’s dual nationality guidance explains these rules and their practical consequences.
Article 3 of China’s Nationality Law states that China does not recognize dual nationality for Chinese nationals. That provision does not mean an American citizen can never be considered Chinese under Chinese law. It also does not mean that everyone who possesses both an American and a Chinese passport legally holds both citizenships. Chinese law distinguishes between nationality acquired at birth and nationality acquired later through naturalization, and it provides for both automatic loss of Chinese nationality and formal renunciation. Those distinctions determine whether China regards a person as Chinese even when the United States recognizes that same person as American. They matter most for American-born children of Chinese parents and for Chinese-born people who later become American citizens.
When Does a Child Born in the United States Have Chinese Citizenship?
Many parents assume that because their child was born in the United States and has an American passport, China must recognize the child as American. That assumption can be wrong. Article 4 of China’s Nationality Law provides that a child born in China to at least one Chinese citizen parent acquires Chinese nationality. Article 5 governs children born outside China and generally provides that a child born abroad to at least one Chinese citizen parent also acquires Chinese nationality.
Article 5 contains an exception that decides most cases involving American-born children. A child who acquires foreign nationality at birth does not acquire Chinese nationality if the child’s Chinese-national parent has already settled abroad. Where both parents are Chinese nationals, both must have settled abroad. Chinese authorities generally interpret “settled abroad” as requiring recognized permanent residence in another country, and in the United States a green card ordinarily establishes that status.
Consider two families. The first consists of two Chinese citizens living in California on temporary work visas. They have a child who acquires American citizenship at birth. Because neither parent had settled abroad when the child was born, China generally considers the child Chinese. The second family consists of two Chinese citizens who obtained U.S. green cards before their child was born. Their child is also American by birth, but because both parents had settled abroad, Article 5 ordinarily means the child does not acquire Chinese nationality. The same rule reaches mixed families. When a Chinese citizen living in the United States on a temporary visa has a child with an American spouse, the child is American by birth and, because the Chinese parent had not settled abroad, ordinarily Chinese as well. The Chinese Embassy’s guidance on visa applications for American-born children confirms the significance of the parents’ permanent residence status.
For some families, the problem first arises when they apply for Chinese visas for their American-born children. The Chinese consulate requests documentation establishing the parents’ immigration status at the time of birth and determines that the children are Chinese nationals. Instead of issuing visas in their American passports, it directs them to obtain Chinese travel documents. The children may have lived their entire lives in the United States, attended American schools, and never possessed Chinese passports. None of those facts necessarily changes their nationality under Chinese law.
Does Becoming a U.S. Citizen Automatically End Chinese Citizenship?
For many Chinese-born people, it does. Article 9 of China’s Nationality Law provides that a Chinese national who has settled abroad and voluntarily acquires foreign nationality automatically loses Chinese nationality. Suppose a Chinese citizen obtains a U.S. green card, establishes permanent residence in the United States, and later becomes a naturalized American. Assuming Article 9’s requirements are satisfied, that person loses Chinese nationality automatically upon naturalization and does not need to apply separately for renunciation. Many people believe that unless they formally surrender their Chinese passports or renounce Chinese nationality, they remain Chinese citizens. Under Article 9, that is not necessarily true. Acquiring foreign citizenship alone is insufficient to terminate Chinese nationality under Article 9. The person must also have settled abroad.
The situation is different for someone who acquired both American and Chinese nationality at birth. China does not generally interpret the automatic acquisition of foreign nationality at birth as the voluntary acquisition of foreign nationality contemplated by Article 9. Consequently, an American-born person who acquired Chinese nationality under Article 5 may continue to be considered Chinese as an adult. For those who remain Chinese citizens, Articles 10 and 11 provide a procedure for formally renouncing Chinese nationality. Article 10 identifies grounds for renunciation, including having settled abroad, having close relatives who are foreign nationals, or having other legitimate reasons, and under Article 11 nationality is lost when the application is approved. Article 14 expressly distinguishes this application process from automatic loss under Article 9.
Even when Chinese nationality has been lost automatically, Chinese administrative records do not necessarily reflect the change. A naturalized American may still have a Chinese household registration (hukou), Chinese identity card, or apparently valid Chinese passport, and Chinese authorities may insist that those records be corrected or the documents surrendered before recognizing the person’s American nationality for administrative purposes. The U.S. State Department’s China travel advisory warns that naturalized Americans may be required to complete additional procedures concerning their former Chinese nationality before being permitted to leave China. Someone who has already lost Chinese nationality under Article 9 may need to document that loss and correct outdated records, which is a different task from applying for renunciation as someone who remains Chinese. Either task should be finished before the trip.
Which Passport Should a U.S.-Chinese Dual National Use?
American citizens, including dual nationals, generally must use their American passports to enter and leave the United States. Traveling to China requires more care. For a naturalized American whom China now treats as a foreign national, the usual approach is to enter China on an American passport with the required Chinese visa or other lawful entry authorization. The State Department’s current guidance strongly encourages dual nationals and naturalized Americans of Chinese descent to use their American passports with appropriate Chinese visas when entering China.
China may consider an American-born child of Chinese parents to be a Chinese national, and in that situation Chinese authorities may refuse to issue a visa in the child’s American passport and instead require a Chinese travel document. The Chinese Consulate’s guidance for American-born children of Chinese parents explains this distinction and the supporting documents consular officials may require, including the parents’ passports and evidence of their U.S. immigration status. Parents should not assume that because their child is American, they can choose whichever passport or travel document is most convenient. They need to determine whether China considers the child Chinese, which travel documents are required, and whether any additional documentation will be necessary for the child to leave China.
Naturalized Americans who have lost Chinese nationality should not assume their old Chinese passports remain valid. Article 16 of China’s Passport Law requires the issuing authority to invalidate a passport when its holder loses Chinese nationality. Continuing to travel using Chinese nationality documents can create serious immigration problems, particularly when the person’s nationality records have not been corrected. The documents a traveler uses can also affect whether China allows American consular officials to help if something goes wrong.
What Consular Protection Does an American Citizen Have in China?
If an American citizen is arrested or detained in China, U.S. consular officials can seek access to that person, check on their welfare, communicate with them, and help arrange contact with family members and local lawyers. They cannot order Chinese authorities to release someone or prevent a prosecution under Chinese law. My law partner Fred Rocafort served as a U.S. consular official in Guangzhou, where he visited Americans detained in Chinese jails. Fred recalls being encouraged to bring old magazines to those prisoners during his consular visits. For an American detained far from home, even an old magazine can mean something. A consular visit also gives the detained person a channel of communication with the American government, helps ensure access to legal representation, and allows consular officials to learn about the person’s condition.
What the U.S.-China Consular Convention Requires
Under Article 35 of the 1980 U.S.-China Consular Convention, Chinese authorities generally must notify American consular officials within four days after detaining a U.S. national. A consular visit must be permitted no later than two days after that notification, with subsequent requested visits allowed at intervals of no more than one month.
The convention also addresses the problem at the center of dual nationality. In diplomatic letters accompanying it, the two governments agreed that people with claims to both American and Chinese nationality would be entitled to consular protection from the country whose valid passport, “properly visaed” in the State Department’s description, they used to enter the other country, subject to the terms of the agreement and their authorized period of stay. The letters expressly state that this arrangement does not require either country to recognize dual nationality generally. This gives a treaty basis for consular protection when the two governments disagree about someone's nationality. The letters refer to passports containing properly executed visas, however, and do not expressly address lawful visa-free entry. Travelers using a visa exemption should not assume that the special arrangement applies to them, though other consular protections may remain available.
Why Chinese Authorities May Still Refuse Consular Access
Chinese authorities do not always honor these treaty protections. China sometimes refuses to recognize the foreign nationality of people it considers Chinese, including those who possess foreign passports. The State Department warns that Chinese authorities may treat people holding Chinese identity cards, household registrations, or Chinese-issued travel documents as Chinese nationals and refuse to recognize their American citizenship. Chinese officials may also deny consular access when a detainee has Chinese identity documents or entered China using Chinese-issued travel documents.
Chinese-Canadian businessman Xiao Jianhua provides a useful example. Xiao was born in China and later became a Canadian citizen. He disappeared from a Hong Kong hotel in 2017 and was subsequently held in mainland China. When he was tried in Shanghai in 2022, Canadian officials sought to attend the proceedings but were refused. China’s foreign ministry said Xiao was Chinese and that, because China does not recognize dual nationality, he had no right to another country’s consular protection. He was sentenced to 13 years in prison. Canada recognized Xiao as its citizen, but Chinese authorities would not allow Canadian officials to attend his trial. There is an important limitation to what his case establishes. The available reporting does not establish that Xiao entered mainland China on a properly visaed Canadian passport, so his experience does not tell us how the protections in the diplomatic letters would apply to someone who did. For a businessperson considering travel to China, the concern remains that Chinese authorities may treat someone they consider Chinese as their own national and refuse foreign consular access, regardless of what foreign citizenship that person holds.
Hong Kong Has Different Nationality Rules
Hong Kong requires separate treatment because the implementation of Chinese nationality law there differs from mainland China’s. As the Hong Kong Immigration Department explains, many Hong Kong residents of Chinese descent who were born in Chinese territory are regarded as Chinese nationals even if they hold foreign passports. Those passports can generally be used to travel abroad, but Hong Kong authorities do not necessarily recognize the holders’ foreign nationality for purposes of consular protection. In 2021, Hong Kong authorities began more strictly enforcing restrictions on foreign consular assistance to dual nationals, and the British government’s official report on Hong Kong documented the policy’s implementation and the resulting dispute over consular access.
The 1997 U.S.-China agreement concerning the American consulate in Hong Kong provides that American citizens entering Hong Kong on U.S. travel documents are to be recognized as Americans for purposes of consular protection during their authorized stay, including lawful visa-free entry. Yet the State Department’s Hong Kong travel advisory warns that even Americans who enter Hong Kong on U.S. passports may be denied consular access if authorities consider them Chinese nationals.
Hong Kong’s Change-of-Nationality Procedure
Hong Kong residents holding foreign citizenship can ask to be treated as foreign nationals rather than Chinese nationals. Under the Hong Kong Immigration Department’s change-of-nationality rules, qualifying residents can apply for a change of nationality, and if the application is approved they are no longer regarded as Chinese nationals and can claim consular protection from the country of their recognized foreign nationality. Approval is not automatic. Applicants must meet the applicable nationality and residence requirements and provide evidence of foreign citizenship, and authorities may refuse an application on various grounds, including national security concerns.
Changing nationality can also affect a person’s right of abode in Hong Kong. Depending on the person’s circumstances and residence history, the change may jeopardize Hong Kong permanent resident status, although someone who loses the right of abode may retain the right to land, which allows the person to live, work, and study in Hong Kong without restrictions on the conditions of stay. Documenting an earlier loss of Chinese nationality under Article 9 does not involve the same decision. Anyone with American citizenship and Hong Kong permanent resident status should examine these immigration consequences before applying to change nationality.
An American Passport Will Not Protect You From a Chinese Exit Ban
American citizens can be prevented from leaving China even when Chinese authorities fully recognize their American citizenship. In 2018, American siblings Victor and Cynthia Liu traveled to China with their mother. Their father, a former Chinese bank official, was wanted by Chinese authorities. Although neither sibling was accused of committing a crime, Chinese authorities imposed exit bans that kept them from returning home. Their lawyers maintained that the restrictions were intended to pressure their father to return to China, and the siblings were permitted to leave in September 2021, after more than three years.
The Liu case matters to businesspeople because China’s use of exit bans extends well beyond criminal prosecutions. The State Department’s guidance on Chinese exit bans warns that Chinese authorities have imposed exit bans in connection with civil and commercial disputes, investigations involving relatives, and efforts to compel cooperation with authorities, and some business-related exit bans have lasted for years. An American citizen involved in a serious dispute with a Chinese business partner, creditor, former employer, or government agency should therefore think carefully before traveling to China. A passport may establish the right to enter the United States, but it does not give its holder the power to compel Chinese authorities to permit departure from China. For someone with unresolved Chinese nationality questions, Chinese officials may also have questions about the person’s citizenship and travel documents on top of whatever dispute or investigation prompted the travel restrictions. Before someone travels to China, I would want to know about their business and family circumstances, not just which passport they carry.
What I Recommend Before Traveling to China
For a Chinese-born person who became an American citizen, I would start by determining whether Chinese nationality was lost under Article 9 and then deal with any remaining Chinese passport, identity card, or household registration before the trip. For an American-born child of Chinese parents, I would start with the parents’ nationality and immigration status when the child was born. For anyone, I would look hard at business and family circumstances, because an unresolved commercial dispute, outstanding debt, government investigation, or family member wanted by Chinese authorities can create risks that have nothing to do with dual citizenship, and someone already involved in a serious China-related dispute should not assume traveling there to resolve it is a sensible idea.
Renouncing Chinese nationality should not be an automatic recommendation. Some naturalized Americans have already lost it by operation of law, others still possess it and need to consider formal renunciation, and Hong Kong residents must weigh their permanent residence and right of abode. These questions sometimes require coordination between American immigration counsel and lawyers familiar with Chinese nationality law. I (Akshat Divatia) can help you evaluate your U.S. citizenship and immigration options, including whether China still considers you Chinese, what documents you must use, and whether anything could keep you from leaving are questions to answer before you board the plane, and coordinate with appropriate Chinese legal counsel where necessary. A Chinese airport is a terrible place to discover that Washington and Beijing disagree over who you are.
