How should or can employers who know they employ Temporary Protected Status (or TPS) workers prepare for elimination of TPS for nationals of certain countries?  Elimination of TPS may affect employment authorization for new employment or for re-verification of employees with expiring employment authorization documents (EADs).  Examples are the recently announced termination of TPS for Nicaragua (but the program was extended until January, 2019 to give Nicaraguans in the U.S. a chance to find an alternative status or to prepare to leave the country and could possibly be extended after January, 2019), and temporary extension of TPS for Honduras until July, 2018.  Employers need to know whether their potential hire or existing hire has valid employment authorization for a specific period of time, or whether employment authorization has or has not been automatically extended, and they need to know how to accurately complete Forms I-9.

Before discussion of how employers should handle changes and expected changes to TPS, it is important to understand that employers should not consider a future employment authorization expiration date in determining whether an individual is qualified for a particular job, and to do so may constitute employment discrimination.   The existence of a future expiration date: a) does not preclude continuous employment authorization; b) does not mean that subsequent employment authorization will not be granted; and c) should not be considered in determining whether the individual is qualified for a particular position.

What is TPS? 

The United States (U.S.) can designate certain countries for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately such as: a) ongoing armed conflict (such as civil war); b) an environmental disaster (such as earthquake or hurricane), or an epidemic; or, c) other extraordinary and temporary conditions.

The US Citizenship and Immigration Services (USCIS) may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the U.S.  (Eligible individuals without nationality who last resided in the designated country may also be granted TPS.)  TPS status does not lead to lawful permanent resident status or give any other immigration status, but it does not prohibit the holder from applying for nonimmigrant status, filing for adjustment of status or from applying for any other immigrant benefit or protection for which the holder may be eligible. During a designated TPS period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases can obtain an EAD and may be granted travel authorization.

In What Circumstances is TPS Automatically Extended, and How Do Employers Know?

In certain circumstances, an EAD may be automatically extended if a timely request for an extension has been filed.  The automatic extension categories for TPS beneficiaries in particular can be confusing to employers.   In order to determine whether employment eligibility is based on TPS, it is first necessary to check the eligibility code on the face of the EAD card.  Codes C19 and A12 indicate that work eligibility is based on TPS.

A TPS beneficiary may demonstrate eligibility for the automatic extension of work eligibility in one of two ways: (1) by presenting Form I-797C, Notice of Action, Fee Receipt, showing an appropriate eligibility code as well as an EAD bearing the appropriate TPS code, or (2) in certain circumstances, by presenting a copy of the Federal Register notice announcing automatic extension of work authorization as well as an EAD bearing the appropriate TPS code.

If presenting Form I-797C, it is possible that an EAD that is expired on its face will show a C19 eligibility code, but the I-797C will indicate an eligibility category code of A12.   The eligibility category codes need not be the same to determine whether there has been an automatic extension of employment authorization.

Alternatively, for individuals from certain TPS countries, their EADs may be automatically extended under a notice published in the Federal Register based on an extension of the TPS country designation. In these instances, DHS will inform the public in the Federal Register notice that TPS status and employment authorization for TPS beneficiaries are being extended.   (Employers are not permitted to require employees to prove they are a national of a country that has been designated for TPS.)

When making determinations about whether or not a particular TPS holder has automatically extended employment authorization, or whether the TPS must have filed an extension of his EAD card prior to its expiration in order to have ongoing employment authorization, the employer should check on TPS rules listed on country specific pages found at https://www.uscis.gov/humanitarian/temporary-protected-status.

How should TPS holders and employers complete Forms I-9 where the EAD card is not valid on its face?

The USCIS has provided special instructions for completing a Form I-9 using an automatically extended EAD for new employment.  When using an automatically extended EAD to complete an I-9 for a new job, the TPS holder and the employer should do the following:

  1. For Section 1, the employee should: a) check “an alien authorized to work,” b) write the alien number or A# in the first space; and, c) write the automatically extended EAD expiration date in the second space which can be found at the above cite.
  2. For Section 2, employers should record: a) the document title, b) the document number; and, c) record the automatic extended EAD expiration date.  Employers must re-verify employment on or before the EAD expiration date in Section 3 of the Form I-9.

In situations of continuing employment of existing employees, the foreign national employee may have presented a TPS-related EAD that was valid when the TPS holder first started his or her job but subsequently that EAD was automatically extended.  In this case, employers should re-inspect his or her automatically extended EAD and the employee and the employer must correct the existing Form I-9 as follows:

For Section 1, the employee should: a) draw a line through the original expiration date, b) write the new expiration date above the previous date; c) write “TPS Ext.” in the margin of Section 1 and d) initial and date the correction in the margin of Section 1.

For Section 2, employers should: a) draw a line through the expiration date written in Section 2, b) write the expiration date above the previous expiration date, c) write “TPS Ext.” d) initial and date the correction in the margin of Section 2.  The employer will need to re-verify the new expiration date on or before the new expiration date in Section 3 of Form I-9.

If an employer is enrolled in E-Verify, and the employer receives an “work authorization documentation expiration” alert for an automatically extended EAD, the employer must re-verify in Section 3 of the Form I-9 the new expiration date.  (Employers should not use E-Verify for re-verification.)

 

About the Author: Elise S. Levasseur is a Member in Dickinson Wright’s Troy office where she practices in the area of immigration. She can be reached at 248-433-7520 or elevasseur@dickinsonwright.com and you can visit her bio here.