In the aftermath of the apparent breakdown of civil liberties in Hong Kong, the United States has joined the UK in creating a path for Hong Kong residents to be able to reside elsewhere. President Biden released a Memorandum announcing that residents of Hong Kong who meet certain criteria will now join the list of nationals entitled to deferred enforced departure (“DED”) - meaning the U.S. will prevent the removal of Hong Kong residents for 18 months (we'll update you if it gets extended), and that those granted DED will also be eligible for employment authorization. The DED is valid Aug. 5, 2021 through Feb. 5, 2023.
President Biden was candid in his admonishment of the People's Republic of China, stating that the human rights and fundamental freedoms of Hong Kong residents have been eroded by the policy and decisions of China in Hong Kong. Over 10,000 people in Hong Kong have been arrested in relation to the protests in the last couple of years. Deferred Enforced Departure is a method used by presidents to delay the removal of a certain population for a specified amount of time. It is authorized through presidential discretion and under a president's constitutional power to conduct foreign relations.
Do I Qualify for Deferred Enforced Departure?
This current Memo applies to Hong Kong residents meeting the following criteria:
- They were in the United States prior to August 5, 2021 and have not traveled back to Hong Kong since then;
- They are not a threat to public safety nor have they spied on the U.S.;
- They have not committed a felony or been found guilty of two or more misdemeanors in the U.S.;
- They are not subject to extradition;
- Their presence in the U.S. would not result in potentially serious adverse foreign policy consequences for the U.S.; and
- They are residents of Hong Kong.
For purposes of this DED, the U.S. defines residents of Hong Kong as those who have met the requirements for, and been issued, a Hong Kong Special Administrative Region (HKSAR) passport, a British National Overseas passport, a British Overseas Citizen passport, a Hong Kong Permanent Identity Card, or an HKSAR Document of Identity for Visa Purposes.
Advocates for Hong Kong residents believe this DED authorization could affect about 100,000 people in the United States.
How Can I be Authorized to Work?
Eligibility for employment authorization during the DED period for Hong Kong residents is fairly straightforward. A person is eligible if they are:
- A Hong Kong resident as described in the Federal Register notice cited above;
- Were present in the United States as of Aug. 5, 2021;
- Have continuously resided in the United States since Aug. 5, 2021; and
- Are otherwise eligible for DED.
On Form I-765 for employment authorization, you must indicate that you are covered under DED for Hong Kong by putting “(a)(11)” in response to Question 27.
An Employment Authorization Document (“EAD”) is valid under this DED category until February 5, 2023.
If you have questions about whether you qualify for Deferred Enforced Departure or can apply for employment authorization under it, please reach out to us at (757) 422-8472, or send us a message on our website. You can also schedule an appointment with one of our attorneys by clicking on this link.
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