Biden Administration Implements Employment Authorization for Individuals Covered under Deferred Enforced Departure

Covered individuals are now eligible to apply for work authorization.

On August 5, 2021, President Biden issued a memorandum directing the Department of Homeland Security to take any steps necessary to defer the removal of certain Hong Kong residents through February 5, 2023.1 Hong Kong residents are defined as "individual[s] 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."2 These individuals must fit certain criteria, such as not being subject to extradition and being present in the Unites States on August 5, 2021, to name two.3 These individuals may now apply for work authorization by filing a Form I-765 with United States Citizenship and Immigration Services (USCIS).4 If deferred enforced departure is granted, the individual will receive an Employment Authorization Document with category code A-11 and an expiration date of February 5, 2023.5

Employers are reminded that each new employee must complete Section 1 of the Form I-9 prior to the end of their first day of work.6 Employers must then complete Section 2 and physically inspect the employment authorization and identity document(s) by the end of the third day of work.7 When completing Section of the Form I-9, employers may not reject any document that reasonably appears to be genuine and relates to the employee.8 Employers may not request proof of Hong Kong residency when completing Section 2 of the Form I-9.9 Rejecting such documents or requesting proof of Hong Kong residency constitutes document abuse and can result in fines and penalties levied by the Department of Justice.

As always Business Information Group continues to monitor the situation and will advise clients accordingly. Business Information Group offers an expansive suite of Form I-9 and E-Verify compliance tools and solutions, including remote Form I-9 completion.

Posted: October 21, 2021

1 See Deferred Enforced Departure for Certain Hong Kong Residents, 86 F.R. 43587 (August 10, 2021).

2 See Implementation of Employment Authorization for Individuals Covered by Deferred Enforced Departure for Hong Kong, 86 F.R. 58296-58299 (October 21, 2021).

3 Id.

4 Id at 58297.

5 Id.

6 8 C.F.R. § 274a.2(b)(1)(i)(A).

7 8 C.F.R. § 274a.2(b)(1)(i)(B).

8 INA § 274B(a)(6); 86 F.R. 58298.

9 86 F.R. 58298.

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