On August 5, 2021, President Biden issued the “Deferred Enforcement Departure for Certain Residents of Hong Kong” memorandum (the “Memorandum”), directing the Department of Homeland Security (“DHS”) to take appropriate measures to defer for 18 months the removal of Hong Kong residents presently in the United States. Hong Kong residents in the United States whose removal has been deferred will also be able to request employment authorization through the U.S. Citizenship and Immigration Services (“USCIS”). The Memorandum further directs Secretary of Homeland Security Alejandro N. Mayorkas to consider suspending regulatory requirements with respect to F-1 nonimmigrant students who are Hong Kong residents. We must wait to see how USCIS will implement such measures.
According to DHS Secretary Mayorkas, “This decision to offer safety and protection to these individuals was made based on the ongoing assault on democracy, and rights and freedoms in Hong Kong by the People’s Republic of China (PRC)… The United States stands with the people of Hong Kong in support of rights and freedoms.”
The measures will apply to any Hong Kong resident who is present in the United States on the date of the Memorandum except for those:
- Who have voluntarily returned to Hong Kong or the PRC after the date of the Memorandum;
- Who have not continuously resided in the U.S. since the date of the Memorandum;
- Who are inadmissible under Section 212(a)(3) of the Immigration and Nationality Act (“INA”) (association with terrorist organizations) or deportable under Section 237(a)(4) of the INA (deportability for security and related grounds such as espionage, terrorist activities, or participation in genocide or extrajudicial killings);
- Who have been convicted of any felony or two or more misdemeanors committed in the U.S., or who meet any of the criteria set forth in section 208(b)(2)(A) of the INA;
- Who are subject to extradition;
- Whose presence in the U.S. is not in the interest of the U.S. or presents a danger to public safety; or
- Whose presence in the U.S. would have potentially serious adverse foreign policy consequences for the United States.
One potential issue that needs to be addressed in the measures to be implemented is how a deferral will affect Hong Kong resident’s lawful status. Nonimmigrants who remain in the U.S. beyond their approved period are considered “out of status”. Accruing 6 months of time out of status may subject such persons to a 3-year bar to reentering the U.S. at a later time. Accruing 12 months of time out of status may subject such persons to a 10-year bar to reentering the United States. Hopefully this issue will be addressed by the USCIS measures that will be adopted by extending lawful status or tolling the accrual of unlawful status during the deferment.
If you think you might be eligible for the deferred enforcement and have questions, contact us at email@example.com and speak with a U.S. immigration attorney in Ho Chi Minh City, Manila and Taipei.