USCIS held a webinar yesterday to provide more information on President Biden’s recent directive that allows certain residents of Hong Kong to remain in the U.S. until February 5, 2023. Specifically, residents of Hong Kong who have been continuously present in the United States since August 5, 2021, will be eligible for work and travel permission under the agency’s Deferred Enforced Departure (DED) program until February 5, 2023. 

Please find below our main takeaways from USCIS’s webinar. 

Who is eligible for DED and is there an application process?

To be eligible for DED, you must be a resident of Hong Kong who has continuously resided in the United States since August 5, 2021. This includes anyone who has dual citizenship, such as someone who has a passport from both the People’s Republic of China and Taiwan. 

If you are a Hong Kong resident who voluntarily left the United States after August 5, 2021, you are not eligible for DED. Hong Kong residents are also not eligible if they have been convicted of two misdemeanors or one felony, or if the United States has determined that their presence poses a threat to public safety or foreign relations.

Because DED is not an immigration status, Hong Kong residents cannot apply for it. DED is a Presidential directive that prevents the removal of certain Hong Kong residents from the United States.

Are travel and work authorization granted to nationals covered by DED?

Travel and work authorization are not automatically granted to nationals protected by DED, but individuals eligible for DED may apply for travel and work authorization. Applicants must submit Form I-765 for work authorization, and Form I-131 for travel authorization. These forms may be filed concurrently if applicants wish to receive both travel and work authorization. Applicants may submit Form I-912 if they qualify for a fee waiver for the work authorization application. 

Applicants must include documentation to establish that they are a resident of Hong Kong and have continuously been in the United States since August 5, 2021. Appropriate documentation to establish Hong Kong residency include, but are not limited to, a Hong Kong Special Administrative Region Passport, or a Hong Kong Permanent Identity Card. USCIS has said that expired passports are acceptable documents in this particular case, and that if submitting a passport as evidence, applicants must include a photocopy of every page in the passport.

To establish continuous residency in the United States since August 5, 2021, applicants can provide I-94 records, employment records, rent receipts, utility bills, or letters from companies showing dates when the applicant received service, or other appropriate documentation.

If you are a Hong Kong resident who has left the United States before receiving travel permission, you may not be permitted to re-enter the United States. 

Does DED benefit Hong Kong residents who reside lawfully in the United States?

Hong Kong residents lawfully present in the United States may now be eligible to apply for work and travel authorization. For example, if a Hong Kong resident eligible for DED is present in the United States with a tourist or student visa, they can now apply for work and travel authorization for which they may not have been previously eligible. Eligible students within their post-study grace period may also apply for work and travel permission.

However, please note that DED does not suspend certain requirements for F-1 student visa holders, such as course load requirements and maintenance of status. 

Does DED erase unlawful presence accrued?

DED does not erase any accrued unlawful presence that took place before August 5, 2021.  However, no unlawful presence will accrue while DED is in place, which is until February 5, 2023. If the Biden Administration does not extend DED before then, Hong Kong residents who do not have a lawful immigration status, but stay in the United States, will begin to accrue unlawful presence after February 5, 2023.

The escalating human rights abuses in Hong Kong have caused tremendous fear among residents of Hong Kong who are overseas and who are worried about returning home at this time.  President Biden’s policy directive gives residents of Hong Kong in the US the time they need to ensure their return is safe and durable. Should you wish to discuss this development further, please do not hesitate to contact us.