[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Notices]
[Pages 28589-28593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09507]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Citizenship and Immigration Services

[CIS 2739-23; 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 of employment authorization for individuals covered by 
Deferred Enforced Departure (DED).

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SUMMARY: On January 26, 2023, President Joseph Biden issued a 
memorandum to the Secretary of State and the Secretary of Homeland 
Security (Secretary) determining that it was in the foreign policy 
interest of the United States to extend and expand the deferral of 
removal of certain Hong Kong residents present in the United States 
through February 5, 2025, and to provide them with employment 
authorization documentation. The memorandum directed the Secretary to 
make provision for immediate allowance of employment authorization for 
such individuals. This Notice provides information about Deferred 
Enforced Departure (DED) for eligible Hong Kong residents and provides 
information on how eligible individuals may apply for DED-based 
Employment Authorization Documents (EADs) with USCIS. Through this 
notice, DHS is providing employment authorization, including procedures 
for obtaining related documentation, for covered individuals through 
February 5, 2025, and automatically extending the validity of DED-based 
EADs bearing a Category Code of A11 and a ``Card Expires'' date of 
February 5, 2023 through February 5, 2025. Finally, this Notice 
provides instructions for DED-eligible Hong Kong residents on how to 
file for advance travel authorization. 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 by DED 
for Hong Kong residents is effective January 26, 2023, through February 
5, 2025. Employment authorization and the procedures for obtaining EADs 
in this Notice apply to any of the following individuals (except those 
who are subject to any of the ineligibilities described in President 
Biden's memorandum to the Secretaries of State and Homeland Security): 
noncitizens who are Hong Kong residents, who were covered by DED until 
February 5, 2023; as well as Hong Kong residents, who have been 
continuously physically present in the United States since January 26, 
2023. Hong Kong residents must meet all eligibility criteria for DED 
described below.

FOR FURTHER INFORMATION CONTACT: 
     You may contact Ren[aacute] Cutlip-Mason, Chief, 
Humanitarian Affairs Division, 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.
     For further information on DED, including additional 
information on eligibility, please visit the USCIS DED web page at 
https://www.uscis.gov/humanitarian/deferred-enforced-departure. You can 
find specific information about DED for Hong Kong residents by 
selecting ``DED Covered Country: Certain Hong Kong Residents''

[[Page 28590]]

from the menu on the left of the DED web page.
     If you have additional questions about DED, please visit 
https://www.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 https://www.uscis.gov, or visit the USCIS Contact Center at 
https://www.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-131--Application for Travel Document
Form I-765--Application for Employment Authorization
Form I-797--Notice of Action
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
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 it is in the foreign policy interest of the United States to defer 
through February 5, 2025, the removal of certain Hong Kong residents, 
who were present in the United States since January 26, 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 
EADs valid through February 5, 2025, and automatically extending 
through February 5, 2025 the validity of DED-based EADs bearing a 
Category Code of A11 and a ``Card Expires'' date of February 5, 2023.
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    \1\ See Presidential Memorandum for the Secretary of State and 
the Secretary of Homeland Security on Extending and Expanding 
Eligibility for Deferred Enforced Departure for Certain Hong Kong 
Residents, January 26, 2023, https://www.whitehouse.gov/briefing-room/presidential-actions/2023/01/26/memorandum-on-extending-and-expanding-eligibility-for-deferred-enforced-departure-for-certain-hong-kong-residents/ (reprinted at 88 FR 6143 (Jan. 31, 2023)).
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What is Deferred Enforced Departure (DED)?

     DED is an administrative deferral of removal ordered by 
the President. The authority to extend 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 advance travel authorization, be available to the 
noncitizens covered by the DED directive.
     If the President provides for employment or advance travel 
authorization, USCIS administers those benefits. USCIS publishes a 
Federal Register notice to inform 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 by 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 to defer 
removal of an individual, rather than a specific immigration status 
like Temporary Protected Status (TPS), there is no DED application form 
required for an individual to be covered by DED. Form I-765, 
Application for Employment Authorization, may be filed if a DED-covered 
individual wants an EAD.

Background

    The President has determined that there are compelling foreign 
policy reasons to extend and expand DED for certain Hong Kong 
residents. In his January 26, 2023 memorandum, he explained that 
``[t]he United States is committed to a foreign policy that unites our 
democratic values with our foreign policy goals, which is centered on 
the defense of democracy and the promotion of human rights around the 
world. Offering safe haven to Hong Kong residents who have been 
deprived of their guaranteed freedoms in Hong Kong furthers United 
States interests in the region.''

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 residents?

    The procedures for employment authorization in this Notice apply to 
non-U.S. citizens who are Hong Kong residents (regardless of their 
country of birth), who are present in the United States and who were 
covered by DED until February 5, 2023, as well as Hong Kong residents, 
who have been continuously physically present in the United States 
since January 26, 2023, except for noncitizens:
     Who have voluntarily returned to Hong Kong or other parts 
of the People's Republic of China (PRC) after January 26, 2023;
     Who have not continuously resided in the United States 
since January 26, 2023;
     Who are inadmissible under section 212(a)(3) of the 
Immigration and Nationality Acct (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 any of 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 of 
Homeland Security 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

[[Page 28591]]

policy consequences for the United States.

What will I need to file if I am covered by DED and would like to 
obtain an EAD?

    If you are covered by DED for Hong Kong and want a DED-based EAD, 
you must file Form I-765, Application for Employment Authorization. 
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 by DED who request an 
EAD to pay the fee prescribed in 8 CFR 103.7 (Oct. 1, 2020) 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 submitting a Request for Fee Waiver (Form I-
912).
    If you currently have a DED-based EAD bearing a Category Code of 
A11 and a ``Card Expires'' date of February 5, 2023 and are covered by 
DED under the January 26, 2023 Presidential Memorandum, your EAD is 
automatically extended through February 5, 2025, even though the 
expiration date stated on the front of the card has passed.
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 a DED-based EAD, mail your completed Form I-765 and supporting 
documentation to the proper address in Table 1.

                       Table 1--Mailing Addresses
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            If you are . . .                      Mail to . . .
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Mailing your form through the U.S.       USCIS, Attn: DED Hong Kong,
 Postal Service (USPS).                   P.O. Box 805283, Chicago, IL
                                          60680-5283.
Using FedEx, UPS, or DHL...............  USCIS, Attn: DED Hong Kong (Box
                                          805283), 131 S Dearborn St.,
                                          3rd Floor, Chicago, IL 60603-
                                          5517.
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    You may file Form I-765 and Form/I-131, Application for Travel 
Document together or separately. More information on filing a Form I-
131 appears below.

Can I file my DED-based Form I-765 electronically?

    No. Electronic filing is not available when filing a DED-based Form 
I-765.

What happens after February 5, 2025, to DED-based EADs?

    This DED authorization is set to end on February 5, 2025. After 
that date, employers can no longer accept EADs with a Category Code of 
A11 and a ``Card Expires'' date of February 5, 2023 or February 5, 
2025. Employees will need to present other evidence of continued work 
authorization.

Travel

    In its discretion, DHS may provide advance travel authorization as 
a benefit of DED for eligible Hong Kong residents. You must file for 
advance travel authorization if you wish to travel outside of the 
United States. If granted, advance travel authorization gives you 
permission to leave the United States and return during a specific 
period. To request advance travel authorization, you must file Form I-
131, Application for Travel Document, available at https://www.uscis.gov/i-131. You may file Form I-131 together with your 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 
travel authorization, 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 other parts of the PRC, you may not be 
permitted to resume DED in the United States since the presidential 
memorandum extending and expanding eligibility for DED for certain Hong 
Kong residents excludes individuals who have voluntarily returned to 
Hong Kong or other parts of the PRC after January 26, 2023.

Mailing Information

    Mail your completed Form I-131 to the proper address provided in 
Table 1.

Supporting Documentation

    The filing instructions for Form I-131 list all the documents you 
need to include with your application. You may also find information on 
the acceptable documentation and DED eligibility on the USCIS website 
at https://www.uscis.gov/humanitarian/deferred-enforced-departure. If 
USCIS needs additional evidence, it will issue you a RFE.

General Employment-Related Information for Individuals With DED-Based 
EADs 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 https://www.uscis.gov, or visit the 
USCIS Contact Center at https://www.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 https://egov.uscis.gov/e-request/Intro.do or call the USCIS Contact Center at 
800-375-5283 (TTY 800-767-1833).

Does this Federal Register notice automatically extend my current Hong 
Kong DED EAD through February 5, 2025?

    Yes. Regardless of your country of birth, if you are a resident of 
Hong Kong, you were covered by DED for Hong Kong until February 5, 
2023, and you are covered by DED under the January 26, 2023 
Presidential Memorandum, this notice automatically extends your DED-
based EAD bearing a February 5, 2023 ``Card Expires'' date and an A11 
Category Code through February 5, 2025. This means that your EAD is 
valid through February 5, 2025,

[[Page 28592]]

even though the ``Card Expires'' date has passed.

When I am 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 https://www.uscis.gov/i-9-central/acceptable-documents. Employers must complete Form I-9 to verify the 
identity and employment authorization of all new employees they hire. 
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 https://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 https://www.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 covered by DED, you can obtain a new DED-based 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, 
2025, you must file Form I-765 and pay the associated fee (or request a 
fee waiver).

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. Therefore, 
employers may not request other documentation, such as a Form I-797, 
Form I-797C or proof of Hong Kong residency, when completing Form I-9. 
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 (mismatch) must promptly inform employees of the mismatch 
and give such employees an opportunity to resolve the mismatch. A 
mismatch 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 mismatch 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 https://www.justice.gov/ier and the USCIS and E-Verify websites at https://www.uscis.gov/i-9-central and https://www.e-verify.gov.

Note Regarding Federal, State, and Local Government Agencies (Such as 
Departments of Motor Vehicles)

    For Federal purposes, if you present an automatically extended DED-
based EAD referenced in this Federal Register notice, you do not need 
to show any other document, such as a Form I-797 or Form I-797C, Notice 
of Action or this Federal Register notice, to prove that you qualify 
for this extension. 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

[[Page 28593]]

for certain benefits. Whether you are applying for a Federal, state, or 
local government benefit, you may need to provide the government agency 
your DHS-issued documentation showing you are covered by DED and/or 
showing you are authorized to work based on DED. Examples of such 
documents are:
     Your current EAD with a DED Category Code of A11, even if 
your country of birth noted on the EAD does not reflect the DED 
designation for Hong Kong; or
     Your Form I-797, Notice of Action, reflecting approval of 
your Form I-765; or
     Your Form I-797 or Form I-797C, Notice of Action, 
reflecting approval or receipt of a past or current Form I-765.
    Check with the government agency requesting documentation regarding 
which documentation the agency will accept.
    Some state and local government agencies use the Systematic Alien 
Verification for Entitlements (SAVE) program to confirm the current 
immigration status of applicants for public benefits. While SAVE can 
verify that an individual is covered by DED, each state and local 
government agency's procedures govern whether they will accept an 
unexpired EAD, Form I-797, or Form I-797C. If an agency accepts the 
type of DED-related document you present, such as a DED-based EAD, the 
agency should accept your automatically extended EAD, regardless of the 
country of birth listed on the EAD. It may assist the agency if you:
    a. Give the agency a copy of the relevant Federal Register notice 
showing the EAD extension in addition to presenting your recent EAD 
with your A-Number or USCIS number;
    b. Explain that SAVE will be able to verify the continuation of DED 
using this information; and
    c. Ask the agency to submit a SAVE verification request with your 
information and follow through with additional verification steps, if 
necessary, to obtain a final SAVE response verifying your coverage 
under DED.
    You can also ask the agency to look for SAVE notices or contact 
SAVE if they have any questions about your immigration status or 
automatic extension of DED-related documentation. 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 https://save.uscis.gov/casecheck/. CaseCheck is a free 
service that lets you follow the progress of your SAVE verification 
using your date of birth and one immigration identifier number (A-
Number or USCIS number) or Verification case number. 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, the SAVE website, https://www.uscis.gov/save, has 
detailed information on how to make corrections or update your 
immigration record, make an appointment, or submit a written request to 
correct records.

[FR Doc. 2023-09507 Filed 5-3-23; 8:45 am]
BILLING CODE 9111-97-P