Immigration, Small Law Firms

Hong Kong Residents Get U.S. Immigration Reprieve

Effective immediately, eligible Hong Kong residents are able to apply for employment authorization for 18 months, through February 5, 2023.

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On August 5, President Joe Biden announced new immigration policies for Hong Kong residents fleeing for their lives. Many of us will remember the poignant scenes on every news channel depicting the bravery of the people of Hong Kong, fighting for their freedom, protesting against the Anti-Extradition and National Security laws. Millions took to the street; countless were arrested, many disappeared. The world watched in awe of the people, and some countries acted swiftly to find immigration pathways for Hong Kong residents to relocate. The United States policy, implemented on October 21, 2021, lays out clear guidelines on who can stay in the U.S. and how.

Under Deferred Enforced Departure (DED), a discretionary protected status authorized under the president’s constitutional discretion to conduct foreign affairs, DED beneficiaries can work and live in the United States until the designated end date. It is a temporary benefit. 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

Effective immediately, eligible Hong Kong residents are able to apply for employment authorization for 18 months, through February 5, 2023.

Who is eligible:

  • Hong Kong residents who were present in the U.S. on August 5, 2021, and have resided here since then.
  • Residents include those who have any nationality, or without nationality, who have met the requirements and been issued a Hong Kong Special Administrative Region (HKSAR) passport, a British National Overseas passport, a British Overseas Citizen passport, a Hong Kong Permanent Identity Card, or an HKSAR Document of Identity for Visa Purposes.

The following people are not eligible:

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  • If you have voluntarily returned to Hong Kong or the People’s Republic of China (PRC) after August 5, 2021;
  • If you have not continuously resided in the United States since August 5, 2021;
  • If you 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));
  • If you have been convicted of any felony or two or more misdemeanors committed in the United States, or meet the criteria set forth in section 208(b)(2)(A) of the I.N.A. (8 U.S.C. 1158(b)(2)(A));
  • If you are subject to extradition;
  • If your presence in the United States the Secretary of State has determined is not in the interest of the United States or presents a danger to public safety; or
  • If your 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.

How to apply:

The general form for U.S. work permission will be required here also. Eligible applicants will file Form I-765, Application for Employment Authorization. However, once this application is filed as a DED beneficiary, travel permission will also be required for international travel in and out of the U. S. You must file Form I-131, Application for Travel Document, to seek travel permission.

Issues to consider:

Given the severe delays in processing times, you should know that it will likely take at least six months to obtain work permits. As such, for practical purposes, you should be prepared with contingency funds for financial self-sufficiency.

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If you intend to travel internationally, know that you will likely be stuck in the U.S. for at least six months, if not more, before the travel authorization is approved.

There are delays at every step, from issuing receipts confirming acceptance of the case, holding biometrics appointments to take digital fingerprints and photos, and issuing the employment and travel authorization card. Best not to be surprised.

And, if you are thinking beyond February 5, 2023, you must start looking for other visa options already. There is no guarantee that this program will continue beyond 2023, at which time you will have to leave the United States.

Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She is a Puget Sound Business Journal 2020 Women of Influence honoree.  Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email at [email protected], connect with her on LinkedIn or follow her on Twitter at @tahminawatson.

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