Today, October 20, 2021, the United States Citizenship and Immigration Services (USCIS) issued a preliminary copy of the notice addressing Deferred Enforced Departure (DED) for Hong Kong Residents who have been physically present in the United States since August 5, 2021. USCIS has also updated its website with more detailed information on Hong Kong DED.
USCIS’s notice is in response to President Biden’s August 5, 2021 memorandum directing Deferred Enforced Departure (DED) for “certain Hong Kong residents” who are present in the US as of August 5, 2021 and who have continuously resided in the US since August 5, 2021. President Biden stated that his decision was in response to China’s imposition of its National Security Law in Hong Kong, which has threatened the rights and fundamental freedoms of Hong Kong residents.
What Is DED for Hong Kong Residents?
DED is a temporary form of relief from removal (deportation) that is granted by the United States president. The period for Hong Kong DED will be for 18 months: from August 5, 2021 through February 5, 2023. During the 18-month DED period, qualifying non-US citizen Hong Kong residents in the United States not be removed (deported) from the United States and will be able to apply for employment authorization and advance parole (travel authorization) from the United States Citizenship and Immigration Services (USCIS).
Currently, besides Hong Kong, the other countries with DED are Venezuela and Liberia.
Who Qualifies for DED for Hong Kong Residents?
In order to qualify for Hong Kong DED, you must meet the following requirements:
You must be a “Hong Kong Resident”
The USCIS notice defines a “Hong Kong Resident” as “an individual of any nationality, or without nationality, who has met the requirement for, and been granted, a Hong Kong Special Administrative Region Passport, a British National Overseas Passport, a British Overseas Citizen Passport, a Hong Kong Permanent Identity card, or a Hong Kong Special Administrative Region (HKSAR) Document of Identity for Visa Purposes.”
You must have been present in the United States on August 5,2021 and have continuously resided in the United States since August 5, 2021.
You are not disqualified from receiving DED for Hong Kong Residents (see below).
Who Does Not Qualify for DED for Hong Kong Residents?
The following individuals are NOT eligible for Hong Kong DED:
- Individuals who have voluntarily returned to Hong Kong or China after August 5, 2021;
- Individuals who have not continuously resided in the United States since August 5, 2021;
- Individuals who are “inadmissible” to the US because of national security or terrorism grounds or who are “removable” from the US because of national security, terrorism, or related grounds;
- Individuals who have been convicted of any felony or two or more misdemeanors committed in the US;
- Individuals who would be barred from receiving asylum due to criminal, terrorism, or related grounds;
- Individuals who are subject to extradition from the US;
- Individuals who the US government believes should not be permitted to remain in the US; and
- Individuals who pose a threat to public safety; and individuals whose presence in the US will negatively affect the United States’ relations with other countries.
How Do I Apply for Hong Kong DED Employment Authorization?
If you qualify for DED for Hong Kong Residents, you are eligible to apply for an Employment Authorization Document (EAD) for employment authorization that will be valid until February 5, 2023. We would advise that you apply for your EAD as soon as possible because EAD processing times are currently unpredictable and can range from 3 months to more than 10 months.
To apply for an EAD with USCIS, you must file:
- Form I-765, Application for Employment Authorization, with the required filing fee of $410.00 (or a request for a fee waiver if you are unable to pay the filing fee) and two color passport-style photographs;
- Evidence of your identity and nationality;
- Evidence that you are a Hong Kong Resident; and
- Evidence that you have been present and continuously resided in the United States since August 5, 2021.
What Documents Can I Submit to Prove my Identity and Nationality for Hong Kong DED?
To prove your identity and nationality, you may submit a clear photocopy of your:
- Passport;
- Birth certificate accompanied by photo identification; or
- Any national identity document from your country of origin with your photo and/or fingerprint
What Documents Can I Submit to Prove I am a Hong Kong Resident for Hong Kong DED?
To prove that you are a Hong Kong Resident for Hong Kong DED purposes, you may submit a clear photocopy of any of the following:
- Hong Kong Special Administrative Region Passport,
- British National Overseas passport;
- British Overseas Citizen passport;
- Hong Kong Permanent Identity Card; or
- HKSAR Document of Identity for Visa Purposes.
What Documents Can I Submit to Prove I Was Present in the US on August 5, 2021 and Have Continuously Resided in the US Since Then?
To prove that you were present in the US on August 5, 2021 and have continuously resided in the US since then, you may submit clear photocopies of the following:
- All pages of your passport, including all visas and entry/exit stamps
- Form I-94, Arrival-Departure Record;
- Employment records;
- Rent receipts, utility bills (gas, electric, telephone, etc.) or receipts, or letters from companies showing dates when the applicant received service;
- Bank account statements with dated transactions;
- Selective Service card;
- Letters submitted by churches, unions, or other organizations of the applicant’s residence;
- Affidavits;
- Money order receipts for money sent in or out of the United States;
- Birth certificates of children born in the United States;
- Letters between the applicant and others; and/or
- Social Security card.
How Can I Apply for Hong Kong DED Advance Parole (Travel Authorization)?
Advance Parole is a discretionary benefit allowing the holder to travel outside the US and then return to the United States without abandoning the status the holder previously held in the US. Advance parole for Hong Kong DED applicants may be granted based on USCIS’s discretion, meaning that USCIS can choose whether or not to approve the advance parole application. You can apply for Hong Kong DED advance parole separately from or at the same time that you apply for Hong Kong DED work authorization.
To apply for Hong Kong DED advance parole, you should submit to USCIS:
- Form I-131, Application for Travel Document, with the required filing fee of $575 and two color passport-style photographs;
- A copy of your passport or official photo identity document;
- Evidence that your trip is for educational, employment, or humanitarian purposes;
- An explanation or other evidence showing the circumstances that warrant issuance of an advance parole document.
Frequently Asked Questions:
If I qualify for Hong Kong DED, can I change my status to another visa status in the United States?
It depends. Generally, you must be maintaining your nonimmigrant status in the US in order to change to another nonimmigrant or immigrant status. DED is not an actual “immigration status”; instead, DED only provides temporary protection from removal (deportation) and potential work and travel authorization for a limited time. Therefore, if you qualify for Hong Kong DED but are not maintaining any lawful nonimmigrant status, you may not be able to change to another nonimmigrant status in the US. Please speak to a qualified immigration attorney about your specific situation.
Can I still qualify for Hong Kong DED if I was present in the US on August 5, 2021,but then I left the US and then returned to the US?
Because Hong Kong DED requires the applicant to have continuously resided in the United States since August 5, 2021, it is possible that USCIS will not approve your application for a Hong Kong DED EAD due to your trip overseas. However, you should speak to a qualified immigration attorney about your specific situation.
What will happen to Hong Kong DED after February 5, 2023?
After February 5, 2023, all Hong Kong DED employment authorization and travel authorization will expire unless the president extends the Hong Kong DED period.
I was previously a Hong KongResident and I came to the United States more than 15 years ago, but I do not have any lawful immigration status now. Do I still qualify for Hong Kong DED?
Yes, you will still be eligible for Hong Kong DED as long as you meet the requirements for Hong Kong DED (please see above), regardless of when you first came to the United States. If you have a prior immigration history in the United States, we recommend that you speak with a qualified immigration attorney about your specific situation.
I have some old criminal records in the United Statesfor things like driving under the influence (DUI). Am I disqualified from Hong Kong DED?
Since applicants who have been convicted of two or more misdemeanors or one felony in the US are not eligible for Hong Kong DED, we would recommend that you speak to a qualified immigration attorney regarding your specific case.
I believe that I qualify for Hong Kong DED. Can I travel outside of the United States?
Assuming that you meet the requirements for Hong Kong DED, you will need to apply for Hong Kong DED Advance Parole (see above), and USCIS must approve your Advance Parole application, before you travel overseas. If you travel overseas without an approved Advance Parole request, you risk abandoning or disqualifying yourself from Hong Kong DED eligibility. On the other hand, if you travel overseas with an approved Advance Parole request, you are eligible to be “paroled” back into the United States upon your return without risking your Hong Kong DED eligibility.
However, please note that should you travel to Hong Kong or China, even with approved Advance Parole, then you risk disqualifying yourself from Hong Kong DED eligibility. Finally, please note that parole back into the United States is subject to the discretion of the US Customs and Border Protection (CBP), so we would advise speaking to a qualified immigration attorney before traveling on Advance Parole.
I have a non-Hong Kong passport or I was not born in Hong Kong. Do I still qualify for Hong Kong DED?
As long as you meet the requirements for being a “Hong Kong Resident” (please see above for the requirements), you will qualify for Hong Kong DED since eligibility for Hong Kong DED is without regard to nationality.
Please contact your local office or [email protected] if you have questions about your eligibility for Deferred Enforced Removal for certain Hong Kong Residents.
Written by Joseph Fungsang, an immigration attorney and partner-in-charge of the New York City office of [nap_names id=”FIRM-NAME-1″]. The above text is for informational purposes only and is not legal advice.
