[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Notices]
[Pages 58296-58299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23012]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: 
     For further information on DED, including additional 
information on eligibility, please visit the USCIS DED web page at 
uscis.gov/humanitarian/deferred-enforced-departure. 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.
     If you have additional questions about DED, please visit 
uscis.gov/tools. 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).
     Applicants seeking information about the status of their 
individual cases may check Case Status Online, available on the USCIS 
website at uscis.gov, or visit the USCIS Contact Center at uscis.gov/contactcenter.
     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.
---------------------------------------------------------------------------

    \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 https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/05/memorandum-on-the-deferred-enforced-departure-for-certain-hong-kong-residents/.
---------------------------------------------------------------------------

What is Deferred Enforced Departure (DED)?

     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.
     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.
     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.
     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: https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/05/memorandum-on-the-deferred-enforced-departure-for-certain-hong-kong-residents/.

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:
     Who have voluntarily returned to Hong Kong or the People's 
Republic of China (PRC) after August 5, 2021;
     who have not continuously resided in the United States 
since August 5, 2021;
     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));
     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));
     who are subject to extradition;
     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
     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:
     Indicate that you are eligible for DED by entering 
``(a)(11)'' in response to Question 27 on the Form I-765; and
     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 https://www.uscis.gov/i-765. 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
------------------------------------------------------------------------
                If . . .                          Mail to . . .
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

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 
www.uscis.gov/i-131. You may file Form I-131 with Form I-765 or 
separately. When filing the Form I-131, you must:
     Select Item Number 1.d. in Part 2 on the Form I-131; and
     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\
---------------------------------------------------------------------------

    \2\ Ibid.
---------------------------------------------------------------------------

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 www.uscis.gov/humanitarian/deferred-enforced-departure. 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 uscis.gov, or visit the USCIS 
Contact Center at uscis.gov/contactcenter. 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 uscis.gov/i-9-central/acceptable-documents. 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 www.uscis.gov/i-9-central/form-i-9-acceptable-documents/receipts. 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 uscis.gov/I-9Central. 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 [email protected]. 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 [email protected].

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 [email protected]. 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 justice.gov/ier and the 
USCIS and E-Verify websites at uscis.gov/i-9-central and e-verify.gov.

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 uscis.gov/save/save-casecheck, 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 
www.uscis.gov/save.

[FR Doc. 2021-23012 Filed 10-20-21; 8:45 am]
BILLING CODE 9111-97-P