Venezuelan Nationals Granted DED
February 5th, 2021
On January 19, 2021, former President Trump issued a Memorandum directing the Secretary of State and Secretary of Homeland Security to defer removals of Venezuelan nationals or noncitizens who last resided in Venezuela for a period of eighteen months. This grant of Deferred Enforced Departure (“DED”) was based on the political turmoil facing Venezuela and causing their nationals to flee to the United States. Trump stated that the crises facing Venezuela and its people “warrants the deferral of the removal of Venezuelan nationals who are present in the United States.” This grant of DED is applicable to Venezuelan nationals present in the U.S. as of January 20, 2021 except those who:
- have voluntarily returned to Venezuela or their last habitual residence outside of the U.S.;
- have not continuously resided in the U.S. since January 20, 2021;
- are inadmissible under §213(a)(3) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(3)) or removable under section 237(a)(4) of the INA (8 U.S.C. 1227(a)(4));
- have been convicted of any felony or two or more misdemeanors committed in the U.S., or who meet the criteria set forth in §208(b)(2)(A) of the INA (8 U.S.C. 1158 (b)(2)(A));
- were deported, excluded, or removed before January 20, 2021;
- who are subject to extradition;
- whose presence in the U.S. the Secretary of Homeland Security has determined is not in the interest of the U.S. or presents a danger to public safety; or
- whose presence in the U.S. the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the U.S.
Additionally, Trump directed the Secretary of Homeland Security to take appropriate measures to grant employment authorization to noncitizens protected under DED for the duration of the deferral.
In order to apply for DED, the applicant must file certain forms required by USCIS including a DED-based Form I-765, Application for Employment Authorization, pay a filing fee or apply for a fee waiver on Form I-912, and include copies of documents proving Venezuelan nationality, the date of entry in the U.S. on or before January 20, 2021, and continuous residence in the U.S. since on or before January 20, 2021. Proof of these details may include the following documents:
- Proving nationality: Passport, birth certificate with photo identification, or national identity document from Venezuela with the applicant’s photo and/or fingerprint.
- Date of entry: Passport entry stamp, I-94 Arrival/Departure Record, or other documents that prove the applicant’s entry to the U.S. on or before January 20, 2021.
- Continuous residence: Employment records (pay stubs, W-2 forms, IRS tax transcripts, state verification of filing state taxes, letters from the applicant’s employer, statements from banks with whom the applicant has done business); rent receipts, utility bills (gas, electric, phone, etc.), receipts, or letters from companies showing dates the applicant received service; school records (report cards, letters, etc.) from schools the applicant or the applicant’s children attended in the U.S. showing names of the schools and dates of attendance; hospital or medical records for treatment the applicant or the applicant’s children received, showing the name of the medical facility or physician and the dates of treatment or hospitalization; attestations by churches, unions or other organizations concerning the applicant’s residence and identifying the applicant by name; or other documents, such as birth certificates of the applicant’s children born in the U.S., dated bank transactions and wire transfers, letters, U.S. Social Security card, driver’s license, Selective Service card, contracts, mortgages, insurance policies, etc.
The last President to use his authority to grant DED protections was President George W. Bush in his Executive Order granting DED to Liberians with TPS status expiring on September 30, 2007. Bush also directed the Secretary of Homeland Security to issue procedures to grant employment authorization to Liberian nationals covered under DED.
DED and TPS are different forms of protection from deportation for nationals from countries facings crises. DED is a status authorized by the President that “prevents migrants from deportation for 18 months and allows them to work" according to Miami immigration lawyer Laura Jimenez. It does not, however, grant non-immigrant status or immigrant status. TPS is a temporary immigration benefit granted by the Secretary of Homeland Security to individuals from designated countries. DED and TPS are both benefits granted for a specific time frame, but neither are permanent. Both grant eligibility to apply for work authorization and there are no automatic travel benefits unless advance parole can be obtained prior to one’s departure. Granting DED to Venezuelan nationals does not eliminate the need to grant them Temporary Protective Status (TPS) and Congress currently faces the issue of passing legislation giving TPS to Venezuelan nationals in the U.S.
In 2019, Senators such as Bob Menendez (D-NJ) attempted to push for TPS for the approximately 200,000 Venezuelan nationals in the U.S. However, the bill did not pass the Republican-majority Senate. Senator Menendez plans to reintroduce the legislation this month. Democrats need at least 10 GOP members to cross the aisle to pass any large-scale bill in the Senate. Meanwhile, Democrats and immigrant advocates will push smaller bills to offer legal status for undocumented immigrants. The announcement of the DED registration period for Venezuelan nationals will soon be published in the Federal Register and instructions for employment authorization will hopefully follow soon after.
DED application process for Venezuelans https://www.legalaidnyc.org/get-help/immigration-deportation/what-you-need-to-know-about-deferred-enforced-departure-for-venezuelans/#forms-to-file
DED Authorization for Liberians with TPS https://www.uscis.gov/archive/ded-granted-country-liberia
Miami Herald: “Here’s what Venezuelans who want to stay in the U.S. need to know about deferred deportation” https://www.miamiherald.com/news/local/immigration/article248718795.html
Politico: “Menendez to renew push for protecting Venezuelans from Deportation” https://www.politico.com/news/2021/01/24/menendez-to-renew-push-for-tps-for-venezuelans-461952
White House Trump Administration https://trumpwhitehouse.archives.gov/presidential-actions/memorandum-deferred-enforced-departure-certain-venezuelans/