Donald Trump’s eleventh-hour executive order deferring the removal of as many as 200,000 Venezuelans currently in the United States has given a respite to these immigrants fearing deportation to their troubled homeland.
These Venezuelan nationals covered by a temporary benefit known as Deferred Enforce Departure (DED) will not be subjected to removal from the U.S. during 18 months and may request employment authorization to work here legally.
But the policy has left a series of unanswered questions among the impacted population.
To get a clearer picture, el Nuevo Herald interviewed Venezuelan immigration attorney, Lea Salama Dimitri, of the Behar Law Group in Fort Lauderdale. Dimitri is a member of the Venezuelan American National Bar Association and has studied the new order, which became effective Jan. 20, 2021.
What is Deferred Enforced Departure?
The President of the United States may authorize Deferred Enforced Departure (DED) in his discretion and as part of his constitutional power to conduct foreign relations. Individuals covered by DED are not subject to removal from the United States for a designated period of time.
DED is not considered non-immigrant status, immigrant status (green card), Temporary Protected Status (TPS) or U.S. citizenship.
What is the difference between DED and TPS?
Both DED and TPS are similar in some aspects but differ in others. DED offers temporary protection from deportation to individuals who are eligible from designated countries or regions and is granted by the President of the United States.
TPS is a temporary immigration benefit granted by the Secretary of Homeland Security to individuals from designated countries.
Both benefits are granted for a specific time frame, but neither benefit is deemed to be a permanent benefit.
In most cases both benefits confer eligibility to apply for work authorization with a limited expiration date but there are no automatic travel benefits unless applicants obtain advance parole prior to departure.
Which Venezuelans are eligible to apply under the terms of the order?
For the most part, any Venezuelan citizen or individual without nationality who has habitually resided in Venezuela and who is physically present in the United States as of Jan. 20, 2021, is eligible to apply.
Who is not eligible to apply?
The order provides exceptions for individuals who have departed the U.S., are inadmissible to the U.S., have been convicted of a felony or two or more misdemeanors in the U.S., have been deported or removed from the U.S. prior to Jan. 20, 2021, who are subject to extradition, among others.
If a Venezuelan national enters the U.S. on or after Jan. 21, do they qualify?
As indicated on the order, only individuals who are present in the U.S. on Jan. 20, 2021 or earlier are eligible to apply. Those who arrive after that date will most likely not be eligible unless the order is amended under the new administration.
How can Venezuelans apply for DED?
At this time, the U.S. Citizenship & Immigration Services (USCIS) has not provided instructions to the public on procedures to receive this benefit or to obtain employment authorization as directed in the order.
An application for DED is not required; DED status is conferred automatically to any eligible individual. The federal government should be providing information in the near future on the procedures regarding this benefit.
What will happen after 18 months?
President Joe Biden has the authority to reverse, amend, or extend the executive action at any time.
Are Venezuelans eligible to work during this period?
The order for the benefit of Venezuelans has a provision for individuals to apply for employment authorization as a benefit of DED. It is anticipated that the federal government will soon publish guidelines on how to apply for employment authorization.
Applicants will need to provide documentation on their identity, Venezuelan nationality and physical presence in the U.S. as of Jan. 20, 2021.
However, current processing times for an employment authorization document are approximately 6-10 months depending on which office is processing the application.
Also, if the employment authorization document expires during the period of DED and applicants file for an extension, it is likely that they will not be authorized to work if the previous employment authorization document expires while the extension application is pending.
Can beneficiaries travel abroad during the DED period?
Those individuals who wish to travel outside the U.S. should consult with a qualified immigration attorney. DED applicants must apply and be approved for an advance parole document to travel abroad.
Advance parole applications can take several months to process. There are many risks in traveling abroad and the specific facts of your case are required before a more detailed answer can be provided.
What if the Venezuelan national entered the U.S. with another nationality?
It is not clear what happens to individuals who were formerly residing in Venezuela and were admitted to the U.S. with another nationality.
There are many Venezuelans who have dual nationality and have entered the United States with a different nationality. In most cases, the nationality used to enter the U.S. controls.
What are the options for Venezuelans with a pending asylum application or a case in immigration court?
The asylum offices and immigration courts are still processing these cases. If a person has a pending asylum case or a case in immigration court, it is recommended to speak to their attorneys about their options.
If asylum and other relief are denied, a judge can still order removal. However, under the terms of the DED order, those individuals who have a final order of removal cannot be removed from the U.S. for as long as the order is in place.
What if the foreigner has lawful immigration status such as an F-1 student visa? Can they change status to DED?
Clients that are currently on F-1 student visas are having struggles in maintaining valid F-1 status for a variety of reasons. They want to know whether they can apply for employment authorization and stop complying with the terms and conditions of their F-1 visas.
DED is considered to be a period of authorized stay in the U.S. but it is not considered to be maintenance of lawful status in the U.S. such as someone who has a visa, parole or TPS. The law is unclear on this issue.
If someone considers an application for this status it may affect his or her eligibility to apply for residency in the U.S. in the future. Until there is more detailed information, it is best to maintain a non-immigrant lawful status.
Daniel Shoer Roth is a journalist covering immigration law who does not offer legal advice or individual assistance to applicants. Follow him on social media. The contents of this story do not constitute legal advice.