Hong Kong activists living in the United States in Deferred Enforced Departure (DED) status worried about whether their DED extended beyond the February 5, 2023, deadline. On January 26, 2023, by way of a memorandum, President Joe Biden extended and expanded eligibility for DED for certain Hong Kong residents for 24 months, until 2025.

In his announcement, President Biden said that since June 2020, by imposing on Hong Kong the Safeguarding National Security law, the People’s Republic of China has “undermined the enjoyment of rights and freedoms in Hong Kong . . . and has continued its assault on Hong Kong’s autonomy, undermining its remaining democratic processes and institutions, imposing limits on academic freedom, and cracking down on freedom of the press.”

DED is a humanitarian administrative stay of removal and is authorized based upon the president’s constitutional authority to conduct foreign relations. DED was first authorized for Hong Kong residents in August 2021. Although there is no application for DED, those who are eligible may apply for employment authorization in the United States. The initial grant of DED for Hong Kongers who were in the United States on or before August 5, 2021, was due to expire on February 5, 2023. Those individuals will be eligible for an automatic extension of DED until February 5, 2025. Hong Kongers who arrived after August 5, 2021, but have continuously resided in the United States since January 26, 2023, are eligible for the new 24-month initial grant of DED. The Biden memorandum also directed the Department of Homeland Security (DHS) to consider further suspension of F-1 nonimmigrant requirements for students from Hong Kong.

Documents establishing Hong Kong nationality and, therefore, eligibility for DED include:

  • HKSAR passport;
  • British National Overseas passport;
  • British Overseas Citizen passport;
  • Hong Kong Permanent Identity Card; or
  • HKSAR Document of Identity for Visa Purposes.

A full description of eligibility and how to apply for employment authorization will be published in the Federal Register by DHS. Hong Kongers who voluntarily returned to Hong Kong or the PRC after January 26, 2023, and those with certain criminal convictions, are not eligible for DED. Additionally, those whose presence presents a danger to public safety or would have potentially adverse foreign policy consequences for the United States are ineligible for DED.

New applications for employment authorization should not be submitted until after the instructions appear in the Federal Register.

Please contact a Jackson Lewis attorney if you have any questions.