The Department of Homeland Security (DHS) published details in the Federal Register about how it will implement the temporary “safe haven” program, also called Deferred Enforced Departure – (DED), for certain Hong Kong residents in the United States. The notice also provides instructions for employers regarding acceptable documentation to hire workers under this program.
The plan comes after a White House announcement last August authorizing DED for this group. In the statement, President Biden emphasized his support for human rights and fundamental freedoms. He cited compelling foreign policy reasons for his decision to extend a safe haven. Specifically, President Biden referenced recent Chinese legislation promulgated in June of last year that affects the Special Administrative Region of Hong Kong. (China’s National Security Law for Hong Kong.)
Although DED is not a specific immigration status, those covered by this administrative mechanism are not subject to removal from the United States until at least February 5, 2023. This may be particularly critical for activists and journalists, as well as students, visitors and other workers who believe they are unable to return to Hong Kong. That is, qualifying Hong Kong residents are not required to leave the U.S. or obtain a new visa should their immigration status expire. Further, the U.S. government will provide them with work authorization.
A DED designation emanates from the President’s constitutional powers to conduct foreign relations and has no statutory basis. It is a blanket, temporary form of relief for individuals from designated countries or regions, usually in response to war, civil unrest, or natural disasters. DED was first authorized in 1990 and has been granted in the past for individuals from China, the Persian Gulf, El Salvador, and Haiti. DED is currently available to qualifying individuals from Liberia, Venezuela, and Hong Kong.
DHS will hold a webinar on November 3, 2021 to provide an overview of DED (Hong Kong), an explanation of eligibility requirements and filing tips.
In July of this year, the Biden Administration issued a Business Advisory highlighting changes in the political climate of China and Hong Kong called “Risks and Considerations for Businesses Operating in Hong Kong.” For additional information, as well issues that should be considered for investors, please see Mayer Brown’s “Guide to Doing Business in Hong Kong.”