INS  Spells Out Deferred Enforced Departure (DED) and Related Benefits for Haitians

In a memo released on, INS has finally spelled out DED eligibility and procedures for applying for that relief and work permits. we excerpt below the relevant and pertinent passages.

On December 23, 1997, President Clinton ordered the Attorney General to provide certain Haitian nationals with Deferred Enforced Departure (DED) and employment authorization until 22 DEC 98. This memo details the treatment of eligible Haitians by the Immigration and Naturalization Service (INS) in order to implement this DED program. This memo supplements but does not supersede the prior field instruction on custody and removal that was issued on December 23, 1997.

Eligibility Definition

With certain exceptions, the eligible class for Haitian DED and related employment authorization consists of Haitian nationals who:

• filed for asylum before 31 DEC 95 OR were paroled into the United States before 31 DEC 95, AND
• have been continuously present in the United States since that date.

An alien meets the asylum filing requirement if such alien was included in an asylum application filed before 31 DEC 95 by his or her spouse, or by his or her parent, while the alien was unmarried and under the age of 21.

For Haitian DED and employment authorization eligibility, "continuously present" is defined to mean no absences from the United States after 31 DEC 95, or if there were absences from the United States since that date: (1) the total time period of such absences does not exceed 180 days; AND (2) for each absence the Haitian either returned to the United States with advance parole or was inspected and admitted to the United States.

Bars to Eligibility

The exceptions to Haitian DED and related employment authorization eligibility include any Haitian national:

• who has been convicted of an aggravated felony;
• who is found to be a persecutor of others within the meaning of INA 101(a)(42) [8 U. S. C. 1101(a)(42)];
• whose removal the Attorney General determines to be in the best interests of the United States;
• whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States;
• who voluntarily returned or returns to Haiti or his or her country or last habitual residence outside the United States-,
• who was deported, excluded, or removed prior to 23 DEC 97- or
• who is subject to extradition.

EAD Application

All eligible Haitians should apply for employment authorization by mailing Form 1-765, Application for Employment Authorization, along with the "Haitian Deferred Enforced Departure (DED) Supplement to Form I-765" to their INS service center of residence in accordance with the Form 1-765 instructions at page 5 concerning the (a)(11) eligibility category. There is no filing fee for the DED-related I-765 (except for a replacement document).

Form Availability

A copy of the DED Supplement form is attached. As the printed form will not be available for some weeks, the use of photocopied forms through other distribution channels will be promoted. INS public information materials are publicizing these other distribution channels. Applicants may request the necessary forms through the INS Forms line at 1-800-870-3676. The DED Supplement form may be downloaded from the Internet. Private parties, including voluntary agencies and attorneys, are authorized to make photocopies for distribution. In addition, local INS offices (especially through information officers) shall make photocopies of the DED Supplement form available upon request. INS sources must distribute the DED Supplement form with the Form I-765 when appropriate.

Where to File

Applicants must mail their completed (a)(11)/I-765 applications to the appropriate INS service center based upon their address of residence. (See page 5 of the Form I-765 instructions for the breakdown by states and the service center addresses.)

Approval and Denial

Upon 1-765 approval, EAD cards will be mailed directly to the applicants. We expect that most applications will not require local office interviews, although interviews will be required when deemed appropriate. The file folder of denied applications should be referred by the service center to the local office for review for possible issuance of a Notice to Appear. A separate SOP details Haitian EAD processing procedures for the service centers and local offices and will be issued separately.

Haitians with Forms I-94 provided for identification purposes (see the attachment concerning encountered Haitians) may later be found ineligible for DED-related employment authorization upon review of available records and information.

A DED-related EAD is a benefit granted for a limited period of time. It does not establish eligibility for permanent status in the United States. Haitians who wish to remain permanently in the United States may apply for any other immigration benefit to which they may be entitled.

Revocation. Upon further findings by INS, Haitian employment authorization may be revoked by the District Director in accordance with 8 CFR 274a. 14(b). After revocation of employment authorization, the local office should review the file and decide whether it is appropriate to issue a Notice to Appear or to advance any pre-existing action against the alien.

Haitians with Forms I-94 provided for identification purposes (see the attachment concerning encountered Haitians) may later be found ineligible for DED upon review of available records and information.

Encountered Aliens. An "encounter" is a normal enforcement interaction with an alien that takes place other than in an INS district office or suboffice. The attachment entitled "Treatment of Encountered Haitians During the DED Period" lists the procedural steps which shall be used for file creation and alien processing for encountered nationals of Haiti who appear to be eligible for DED. Note that most eligible Haitians should have pre-existing A-files.

Advance Parole

DED eligible Haitians who need to travel outside the United States may apply for advance parole by filing Form I-131 with fee to their local INS office. Applicants who are partially basing their request for advance parole on DED status must attach a copy of their DED-related EAD card to their application. Advance parole requests must be adjudicated in accordance with the procedures and requirements set forth in 8 CFR 212.5, 8 CFR 223.2, and OI 212.5.

I-512 Issuance. If a Form 1-512 is issued, during the DED period, to a Haitian who may be covered by DED, the Service will issue the Form 1-512 valid for a maximum of 90 days but not to exceed 22 DEC 98 and with this special notation in the "Remarks" box: "DED expires December 22, 1998." The Form 1-512 must include on its face this statement:

Warning: A Haitian is ineligible for DED benefits if he or she: (1) voluntarily returns to Haiti or his or her country of last habitual residence outside the United States; OR (2) is absent from the United States after December 31, 1995, for time periods which cumulatively exceed 180 days. If you become ineligible for DED during your absence from the United States, you may be subject to removal proceedings upon your return.

Parole 1-94 Issuance

Upon the Haitian's timely return to the United States with advance parole, the inspecting officer should mark the 1-94 "until" line: "Expiration of DED, December 22, 1998." However, this notation shall not be used if the Haitian has voluntarily returned to Haiti or his or her country of last habitual residence outside the United States, or has been absent from the United States since 31 DEC 95 for time periods which cumulatively exceed 180 days, since that Haitian is ineligible for DED.

The Offices of Field Operations and Naturalization Operations have concurred with this memo. Questions regarding Haitian DED-related EAD applications may be directed through appropriate supervisory channels to HQADN, attn: Ron Chirlin, Adjudications Officer, 202-514-5014.

Treatment of Encountered Haitians During the DED Period

An encounter is defined as the normal enforcement interaction with an alien that takes place other than in an INS District Office. An alien who appears at an INS District Office and requests to be processed under DED is not deemed to be encountered.

When a national of Haiti is encountered by Service personnel and appears to be eligible for DED, the following action will be taken:

1. Open A-file or temporary file, whichever is applicable;
2. Complete Form 1-213 (Record of Deportable Alien). Include in the narrative any information which might assist in the detection of fraud.
3. Conduct record checks, i.e., CIS, NCIS, NAILS, and NIIS. Include in 1-213 narrative a statement that checks have been completed (and any results);
4. Copy and place in file, all documents in the alien's possession that are relevant to his/her DED eligibility, i.e., passport, birth certificate, documentation regarding the alien's continuous residence in the U.S. since December 31, 1995, etc. Do not retain original documents unless fraud is suspected.
5. Fingerprint the alien using Form FD-258 (fingerprint chart) and process it following the directives of the December 29, 1997, memo, "Guidance on the Acceptance and Handling of FD-258 Fingerprint Cards," or any subsequent directives.
6. Photograph the alien and place the photo in the file;
7. Place the alien's right index fingerprint on the reverse of the 1-94;
8. Complete Form 1-263W (Sworn Statement) and the attached questions (to be duplicated in the field);
9. Provide the alien with Form 1-94 (1-213 copy) with the annotation in large block letters on the reverse of the 1-94: "APPEARS COVERED BY DED UNTIL DECEMBER 22,1998."
10. Forward the file, with all of the above documentation, to the district having jurisdiction over the alien's intended destination.