Notice2021-23012
Implementation of Employment Authorization for Individuals Covered by Deferred Enforced Departure for Hong Kong
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 21, 2021
Effective
August 5, 2021
Issuing agencies
Homeland Security DepartmentU.S. Citizenship and Immigration Services
Abstract
On August 5, 2021, President Joseph Biden issued a memorandum to the Secretary of State and the Secretary of Homeland Security (Secretary) directing the Secretary to take appropriate measures to defer for 18 months, through February 5, 2023, the removal of certain Hong Kong residents present in the United States. This Notice provides information about Deferred Enforced Departure (DED) for certain eligible Hong Kong residents and provides information on how eligible individuals may apply for DED-related Employment Authorization Documents (EADs) with USCIS. For the purposes of this Notice, a Hong Kong resident is defined as an individual of any nationality, or without nationality, who has met the requirements 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.
Full Text
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<title>Federal Register, Volume 86 Issue 201 (Thursday, October 21, 2021)</title>
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[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Notices]
[Pages 58296-58299]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-23012]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[CIS No. 2701-21; DHS Docket No. USCIS-2021-0020]
RIN 1615-ZB90
Implementation of Employment Authorization for Individuals
Covered by Deferred Enforced Departure for Hong Kong
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security.
ACTION: Notice.
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SUMMARY: On August 5, 2021, President Joseph Biden issued a memorandum
to the Secretary of State and the Secretary of Homeland Security
(Secretary) directing the Secretary to take appropriate measures to
defer for 18 months, through February 5, 2023, the removal of certain
Hong Kong residents present in the United States. This Notice provides
information about Deferred Enforced Departure (DED) for certain
eligible Hong Kong residents and provides information on how eligible
individuals may apply for DED-related Employment Authorization
Documents (EADs) with USCIS. For the purposes of this Notice, a Hong
Kong resident is defined as an individual of any nationality, or
without nationality, who has met the requirements 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.
DATES: DED and employment authorization for noncitizens covered under
DED for Hong Kong is effective from August 5, 2021 through February 5,
2023. The procedures for employment authorization in this Notice apply
only to noncitizens who are Hong Kong residents, who are present in the
United States as of August 5, 2021, and who meet other eligibility
criteria for DED described below.
FOR FURTHER INFORMATION CONTACT: You may contact Andria Strano, Acting
Division Chief, Office of Policy and Strategy, U.S. Citizenship and
Immigration Services, Department of Homeland Security, by mail at 5900
Capital Gateway Drive, Camp Springs, MD 20746, or by phone at 800-375-
5283.
ADDRESSES:
<bullet> For further information on DED, including additional
information on eligibility, please visit the USCIS DED web page at
<a href="http://uscis.gov/humanitarian/deferred-enforced-departure">uscis.gov/humanitarian/deferred-enforced-departure</a>. You can find
specific information about DED for Hong Kong by selecting ``DED Granted
Region: Hong Kong'' from the menu on the left of the DED web page.
<bullet> If you have additional questions about DED, please visit
<a href="http://uscis.gov/tools">uscis.gov/tools</a>. Our online virtual assistant, Emma, can answer many of
your questions and point you to additional information on our website.
If you are unable to find your answers there, you may also call our
USCIS Contact Center at 800-375-5283 (TTY 800-767-1833).
<bullet> Applicants seeking information about the status of their
individual cases may check Case Status Online, available on the USCIS
website at <a href="http://uscis.gov">uscis.gov</a>, or visit the USCIS Contact Center at <a href="http://uscis.gov/contactcenter">uscis.gov/contactcenter</a>.
<bullet> Further information will also be available at local USCIS
offices upon publication of this Notice.
SUPPLEMENTARY INFORMATION:
Table of Abbreviations
CFR--Code of Federal Regulations
DED--Deferred Enforced Departure
DHS--U.S. Department of Homeland Security
EAD--Employment Authorization Document
FNC--Final Non-confirmation
Form I-765--Application for Employment Authorization
Form I-9--Employment Eligibility Verification
Form I-912--Request for Fee Waiver
FR--Federal Register
Government--U.S. Government
IER--U.S. Department of Justice Civil Rights Division, Immigrant and
Employee Rights Section
SAVE--USCIS Systematic Alien Verification for Entitlements Program
Secretary--Secretary of Homeland Security
TNC--Tentative Non-confirmation
TPS--Temporary Protected Status
TTY--Text Telephone
USCIS--U.S. Citizenship and Immigration Services
U.S.C.--United States Code
Purpose of This Action
Pursuant to the President's constitutional authority to conduct the
foreign relations of the United States, President Biden has concluded
that foreign policy considerations warrant implementing DED for Hong
Kong through February 5, 2023.\1\ Through this Notice, as directed by
the President, DHS is establishing procedures for individuals covered
by DED for Hong Kong to apply for employment authorization through
February 5, 2023.
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\1\ See Presidential Memorandum for the Secretary of State and
the Secretary of Homeland Security on the Deferred Enforced
Departure for Certain Hong Kong Residents August 5, 2021, available
at <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/05/memorandum-on-the-deferred-enforced-departure-for-certain-hong-kong-residents/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/05/memorandum-on-the-deferred-enforced-departure-for-certain-hong-kong-residents/</a>.
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What is Deferred Enforced Departure (DED)?
<bullet> DED is an administrative stay of removal ordered by the
President. The authority to grant DED arises from the President's
constitutional authority to conduct the foreign relations of the United
States. The President can authorize DED for any reason related to this
authority. DED has been authorized in situations where foreign
nationals or other groups of noncitizens may face danger if required to
return to countries or any part of such foreign countries experiencing
political instability, conflict, or other unsafe conditions, or when
there are other foreign policy reasons for allowing a designated group
of noncitizens to remain in the United States.
<bullet> Although DED is not a specific immigration status,
individuals covered by DED are not subject to removal from the United
States, usually for a designated period of time. Furthermore, the
President may direct that certain benefits, such as employment
authorization or travel authorization, be available to the noncitizens
covered by the DED directive.
<bullet> If the President provides for employment or travel
authorization, USCIS administers those benefits. USCIS publishes a
Federal Register notice to instruct the covered population on how to
apply for any benefits provided.
<bullet> The President issues directives regarding DED and who is
covered via presidential memorandum. The qualification requirements for
individuals who are covered under DED are based on the terms of the
President's directive regarding DED and any relevant implementing
requirements established by DHS. Since DED is a directive not to remove
particular individuals, rather than a specific immigration status like
Temporary Protected Status (TPS), there is no DED application form
required to obtain DED coverage.
[[Page 58297]]
The Presidential Memorandum ordering DED for Hong Kong can be found
at: <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/05/memorandum-on-the-deferred-enforced-departure-for-certain-hong-kong-residents/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/05/memorandum-on-the-deferred-enforced-departure-for-certain-hong-kong-residents/</a>.
Ur M. Jaddou,
Director, U.S. Citizenship and Immigration Services.
Eligibility and Employment Authorization for DED
How will I know if I am eligible for employment authorization under the
DED Presidential Memorandum for Hong Kong?
The procedures for employment authorization in this Notice apply
only to non-U.S. citizens who are Hong Kong residents (regardless of
their country of birth), who are present in the United States as of
August 5, 2021, except for noncitizens:
<bullet> Who have voluntarily returned to Hong Kong or the People's
Republic of China (PRC) after August 5, 2021;
<bullet> who have not continuously resided in the United States
since August 5, 2021;
<bullet> who are inadmissible under section 212(a)(3) of the
Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(3)) or
deportable under section 237(a)(4) of the INA (8 U.S.C. 1227(a)(4));
<bullet> who have been convicted of any felony or two or more
misdemeanors committed in the United States, or who meet the criteria
set forth in section 208(b)(2)(A) of the INA (8 U.S.C. 1158(b)(2)(A));
<bullet> who are subject to extradition;
<bullet> whose presence in the United States the Secretary has
determined is not in the interest of the United States or presents a
danger to public safety; or
<bullet> whose presence in the United States the Secretary of State
has reasonable grounds to believe would have potentially serious
adverse foreign policy consequences for the United States.
What will I need to file if I am covered by DED and would like to
obtain employment authorization?
If you are covered under DED for Hong Kong and would like to work
on a DED-related EAD, you must apply for an EAD by filing an
Application for Employment Authorization (Form I-765). Please carefully
follow the Form I-765 instructions when completing the application for
an EAD. When filing the Form I-765, you must:
<bullet> Indicate that you are eligible for DED by entering
``(a)(11)'' in response to Question 27 on the Form I-765; and
<bullet> Submit the fee for the Form I-765 (or request a fee
waiver).
The regulations require individuals covered under DED who request
an EAD to pay the fee prescribed in 8 CFR 103.7 for the Form I-765. See
also 8 CFR 274a.12(a)(11) (employment authorization for DED-covered
individuals); and 8 CFR 274a.13(a) (requirement to file EAD application
if EAD desired). If you are unable to pay the fee, you may request a
fee waiver by completing a Request for Fee Waiver (Form I-912).
Supporting Documentation
The filing instructions on Form I-765 list all the documents
needed. You may also find information on the initial required documents
on the USCIS website at <a href="https://www.uscis.gov/i-765">https://www.uscis.gov/i-765</a>. If USCIS
determines after reviewing your submission that it needs additional
information, it will issue you a Request for Evidence (RFE).
How will I know if USCIS will need to obtain biometrics?
If biometrics are required to produce your EAD, you will be
notified by USCIS and scheduled for an appointment at a USCIS
Application Support Center.
Where do I submit my completed DED-based application for employment
authorization (Form I-765)?
For DED, mail your completed Form I-765 and supporting
documentation to the proper address in Table 1 below.
Table 1--Mailing Addresses
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If . . . Mail to . . .
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You are applying through the U.S. USCIS, Attn: DED Hong Kong,
Postal Service. P.O. Box 805283, Chicago, IL
60680-5283.
You are using FedEx, UPS, or DHL....... USCIS, Attn: DED Hong Kong,
(Box 805283), 131 South
Dearborn--3rd Floor, Chicago,
IL 60603-5517.
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Can I file my DED-based Form I-765 electronically?
No. Electronic filing is not available when filing Form I-765 based
on DED.
What happens after February 5, 2023, for purposes of DED-based
employment authorization?
This DED authorization is set to end on February 5, 2023. After
that date, employers can no longer accept EADs with a category code of
A11 and a February 5, 2023, expiration date, and employees will need to
present other evidence of continued work authorization.
Travel
In its discretion, DHS may provide travel authorization as a
benefit of DED for eligible Hong Kong residents. You must file for
advance parole if you wish to travel outside the United States. Advance
parole gives you permission to leave the United States and return
during a specified period. To request advance parole, you must file
Form I-131, Application for Travel Document, available at
<a href="http://www.uscis.gov/i-131">www.uscis.gov/i-131</a>. You may file Form I-131 with Form I-765 or
separately. When filing the Form I-131, you must:
<bullet> Select Item Number 1.d. in Part 2 on the Form I-131; and
<bullet> Submit the fee for the Form I-131.
If you leave the United States without first receiving advance
parole, you may no longer be eligible for DED and may not be permitted
to reenter the United States. Please also be advised that if you return
to Hong Kong or the PRC, you may not be permitted to resume DED in the
United States since the presidential memorandum providing for DED for
certain Hong Kong residents excludes individuals who have voluntarily
returned to Hong Kong or the PRC after August 5, 2021.\2\
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\2\ Ibid.
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Mailing Information
Mail your application for Form I-131 to the proper address in Table
1.
Supporting Documentation
The filing instructions on Form I-131 list all the documents
needed. You may also find information on the acceptable documentation
and DED eligibility on the USCIS website at <a href="http://www.uscis.gov/humanitarian/deferred-enforced-departure">www.uscis.gov/humanitarian/deferred-enforced-departure</a>. If USCIS needs additional evidence, it
will issue you an RFE.
General Employment-Related Information for Individuals With DED-Based
Employment Authorization and Their Employers
How can I obtain information on the status of my EAD request?
To get case status information about your DED-based EAD request,
you can check Case Status Online at <a href="http://uscis.gov">uscis.gov</a>, or visit the USCIS
Contact Center at <a href="http://uscis.gov/contactcenter">uscis.gov/contactcenter</a>. If your Form I-765 has been
pending for more than 90 days, and you still need assistance, you may
ask a question about your case online at egov.uscis.gov/e-request/
[[Page 58298]]
Intro.do or call the USCIS Contact Center at 800-375-5283 (TTY 800-767-
1833).
When hired, what documentation may I show to my employer as evidence of
identity and employment authorization when completing Form I-9?
You can find the Lists of Acceptable Documents on the third page of
Form I-9, Employment Eligibility Verification, as well as the
Acceptable Documents web page at <a href="http://uscis.gov/i-9-central/acceptable-documents">uscis.gov/i-9-central/acceptable-documents</a>. Employers must complete Form I-9 to verify the identity and
employment authorization of all new employees hired after November 6,
1986. Within three business days of hire, employees must present
acceptable document(s) to their employers as evidence of identity and
employment authorization to satisfy Form I-9 requirements and employers
must complete Section 2 of the Form I-9. For employment that will last
less than three days, Section 2 of the Form I-9 must be completed no
later than the first day of work for pay.
You may present any documentation from List A (which provides
evidence of both identity and employment authorization) or
documentation from List B (which provides evidence of your identity)
together with documentation from List C (which provides evidence of
employment authorization), or where applicable you may present an
acceptable receipt. Receipts may not be accepted if employment will
last less than three days. Additional information on receipts is
available at <a href="http://www.uscis.gov/i-9-central/form-i-9-acceptable-documents/receipts">www.uscis.gov/i-9-central/form-i-9-acceptable-documents/receipts</a>. Employers may not reject a document based on a future
expiration date. You can find additional information about Form I-9 on
the I-9 Central web page at <a href="http://uscis.gov/I-9Central">uscis.gov/I-9Central</a>. An EAD is an
acceptable document under List A.
If I have an EAD based on another immigration status, can I obtain a
new DED-based EAD?
Yes, if you are eligible for DED, you can obtain a new EAD,
regardless of whether you have an EAD based on another immigration
status. If you want to obtain a DED-based EAD valid through February 5,
2023, then you must file Form I-765 and pay the associated fee.
Can my employer require that I provide any other documentation to prove
my status, such as proof of my Hong Kong residency?
No. When completing Form I-9, employers must accept any
documentation that appears on the Form I-9 Lists of Acceptable
Documents that reasonably appears to be genuine and that relates to
you, or an acceptable List A, List B, or List C receipt. Employers need
not reverify List B identity documents. Therefore, employers may not
request proof of Hong Kong residency when completing Form I-9 for new
hires or reverifying the employment authorization of current employees.
Refer to the ``Note to Employees'' section of this Federal Register
notice for important information about your rights if your employer
rejects lawful documentation, requires additional documentation, or
otherwise discriminates against you based on your citizenship or
immigration status, or your national origin.
Note to All Employers
Employers are reminded that the laws requiring proper employment
eligibility verification and prohibiting unfair immigration-related
employment practices remain in full force. This Federal Register notice
does not supersede or in any way limit applicable employment
verification rules and policy guidance, including those rules setting
forth reverification requirements. For general questions about the
employment eligibility verification process, employers may call USCIS
at 888-464-4218 (TTY 877-875-6028) or email USCIS at <a href="/cdn-cgi/l/email-protection#bbf29682f8ded5cfc9dad7fbdfd3c895dcd4cd"><span class="__cf_email__" data-cfemail="145d392d57717a6066757854707c673a737b62">[email protected]</span></a>. USCIS accepts calls and emails in English and many
other languages. For questions about avoiding discrimination during the
employment eligibility verification process (Form I-9 and E-Verify),
employers may call the U.S. Department of Justice, Civil Rights
Division, Immigrant and Employee Rights Section (IER) Employer Hotline
at 800-255-8155 (TTY 800-237-2515). IER offers language interpretation
in numerous languages. Employers may also email IER at <a href="/cdn-cgi/l/email-protection#571e120517222433383d79303821"><span class="__cf_email__" data-cfemail="357c7067754046515a5f1b525a43">[email protected]</span></a>.
Note to Employees
For general questions about the employment eligibility verification
process, employees may call USCIS at 888-897-7781 (TTY 877-875-6028) or
email USCIS at <a href="/cdn-cgi/l/email-protection#9bd2b6a2d8fef5efe9faf7dbfff3e8b5fcf4ed"><span class="__cf_email__" data-cfemail="d099fde993b5bea4a2b1bc90b4b8a3feb7bfa6">[email protected]</span></a>. USCIS accepts calls in English,
Spanish and many other languages. Employees or applicants may also call
the IER Worker Hotline at 800-255-7688 (TTY 800-237-2515) for
information regarding employment discrimination based upon citizenship,
immigration status, or national origin, including discrimination
related to Form I-9 and E-Verify. The IER Worker Hotline provides
language interpretation in numerous languages.
To comply with the law, employers must accept any document or
combination of documents from the Lists of Acceptable Documents if the
documentation reasonably appears to be genuine and to relate to the
employee, or an acceptable List A, List B, or List C receipt. Employers
may not require extra or additional documentation beyond what is
required for Form I-9 completion. Further, employers participating in
E-Verify who receive an E-Verify case result of Tentative Non-
confirmation (TNC) must promptly inform employees of the TNC and give
such employees an opportunity to contest the TNC. A TNC case result
means that the information entered into E-Verify from Form I-9 differs
from records available to DHS.
Employers may not terminate, suspend, delay training, withhold or
lower pay, or take any adverse action against an employee because of
the TNC while the case is still pending with E-Verify. A Final Non-
confirmation (FNC) case result is received when E-Verify cannot confirm
an employee's employment eligibility. An employer may terminate
employment based on a case result of FNC. Work-authorized employees who
receive an FNC may call USCIS for assistance at 888-897-7781 (TTY 877-
875-6028). For more information about E-Verify-related discrimination
or to report an employer for discrimination in the E-Verify process
based on citizenship, immigration status, or national origin, contact
IER's Worker Hotline at 800-255-7688 (TTY 800-237-2515). Additional
information about proper nondiscriminatory Form I-9 and E-Verify
procedures is available on the IER website at <a href="http://justice.gov/ier">justice.gov/ier</a> and the
USCIS and E-Verify websites at <a href="http://uscis.gov/i-9-central">uscis.gov/i-9-central</a> and <a href="http://e-verify.gov">e-verify.gov</a>.
Note Regarding Federal, State, and Local Government Agencies (Such as
Departments of Motor Vehicles)
For Federal purposes, individuals may present their A11 EAD to show
they are covered by DED. However, while Federal Government agencies
must follow the guidelines laid out by the Federal Government, state
and local government agencies establish their own rules and guidelines
when granting certain benefits. Each state may have different laws,
requirements, and determinations about what documents you need to
provide to prove eligibility for certain benefits. Whether you are
applying for a Federal, state, or local government benefit, you may
need to provide the government agency your A11 EAD or other DHS-issued
documentation showing you are covered
[[Page 58299]]
under DED and/or showing you are authorized to work based on DED. Check
with the government agency regarding which documentation the agency
will accept.
Some benefit-granting agencies use the Systematic Alien
Verification for Entitlements (SAVE) program to confirm the current
immigration status of applicants for public benefits. SAVE can verify
when an individual has DED based on the documentation above. In most
cases, SAVE provides an automated electronic response to benefit-
granting agencies within seconds, but occasionally verification can be
delayed. You can check the status of your SAVE verification by using
CaseCheck at <a href="http://uscis.gov/save/save-casecheck">uscis.gov/save/save-casecheck</a>, then by clicking the
``Check Your Case'' button. CaseCheck is a free service that lets you
follow the progress of your SAVE verification using your date of birth
and SAVE verification case number or an immigration identifier number
that you provided to the benefit-granting agency. If an agency has
denied your application based solely or in part on a SAVE response, the
agency must offer you the opportunity to appeal the decision in
accordance with the agency's procedures. If the agency has received and
acted on or will act on a SAVE verification and you do not believe the
response is correct, find detailed information on how to make
corrections or update your immigration record, make an appointment, or
submit a written request to correct records on the SAVE website at
<a href="http://www.uscis.gov/save">www.uscis.gov/save</a>.
[FR Doc. 2021-23012 Filed 10-20-21; 8:45 am]
BILLING CODE 9111-97-P
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