Hong Kong Residents on U.S. Deferred Enforced Departure Can Apply for Employment Authorization

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Instructions allowing Hong Kong Deferred Enforced Departure (DED) beneficiaries to apply for employment authorization have been published in the Federal Register.

On August 5, 2021, President Biden granted DED for certain eligible residents of Hong Kong for 18 months, until February 5, 2023, and directed that instructions on how to apply for employment authorization be issued. DED is a humanitarian administrative stay of removal and is authorized based upon the President’s constitutional authority to conduct foreign relations. It is generally granted where foreign nationals in the United States might face danger if required to return to areas or countries experiencing political instability, conflict, or other unsafe conditions.

Those eligible for Hong Kong DED must, among other things:

  • Hold 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 Document of Identity for Visa Purposes;
  • Have been present and continuously resided in the United States since August 5, 2021; and
  • Have not voluntarily returned to Hong Kong or the People’s Republic of China after August 5, 2021.

There is no “application” for DED, but those who are eligible for DED may apply for an Employment Authorization Document (EAD). To do so, the applicant must:

  • File an Application for Employment Authorization (Form I-765) and indicate that they are eligible for DED, which is category (a)(11) on the form;
  • Submit the requested documentation pursuant to the form’s instructions; and
  • Submit the fee ($410) or request a fee waiver.

USCIS will notify the applicant if biometrics are required.

EADs, including those issued based on DED, are List A Documents for Form I-9 Employment Eligibility Verification purposes and should be accepted as such.

The instructions indicate that DED beneficiaries may also apply for travel authorization (Advance Parole), which will be granted in the discretion of the Department of Homeland Security. Filing for Advance Parole means filing with USCIS a Form I-131 with the appropriate fee. The Form I-131 may be filed concurrently with the Form I-765.

For more detailed instructions, please see the Federal Register.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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