The Trump Administration has recently announced several important developments impacting the employment eligibility of hundreds of thousands of foreign nationals legally working in the United States. In the past few months, the United States Citizenship and Immigration Services (USCIS) gave notice that it is terminating the Temporary Protected Status program (TPS) for foreign nationals residing in the United States from the following countries: Sudan, Nicaragua, Haiti, and most recently, El Salvador.
Foreign nationals who are TPS beneficiaries are not removable from the United States and may obtain an Employment Authorization Document (EAD) to legally work while they are residing in the United States temporarily. TPS is not a basis for foreign nationals to obtain lawful permanent residency in the United States; it only permits designees to remain in the country on a temporary basis due to temporary conditions in their own country which prevents their safe return (e.g., ongoing armed conflict, health epidemics, environmental disasters, or other extraordinary and temporary conditions). Many in the TPS program have been living and working in the United States for more than 10 years and may well have risen to management positions at work.
To give TPS beneficiaries and their employers time to make plans for this transition, USCIS has delayed the effective date of the termination of TPS for the affected countries for 18 months as follows:
- November 2, 2018 for TPS beneficiaries from Sudan.
- January 5, 2019 for TPS beneficiaries from Nicaragua.
- July 22, 2019 for TPS beneficiaries from Haiti.
- September 9, 2019 for TPS beneficiaries from El Salvador.
During this time, TPS beneficiaries will be able to register to extend their status and apply for an extension of their EADs during the 60-day re-registration period announced in the Federal Register. At this time, the 60-day re-registration period for Sudanese TPS designees has already expired. Nicaraguan nationals may re-register for TPS until February 13, 2018. The re-registration period for TPS beneficiaries from Haiti and El Salvador was announced in the Federal Register on January 18, 2018 and will continue through March 19, 2018.
Updating Form I-9s of Existing Employees
To prepare for this transition, we recommend that employers review their internal procedures for reverifying expiring employment eligibility for their employees and to consider performing an internal Form I-9 audit to confirm the continuing employment eligibility of their workforce.
The EADs of employees who are TPS beneficiaries from Haiti, El Salvador, Nicaragua, or Sudan are likely expired or will expire in the immediate future. USCIS has automatically extended the current EADs for these beneficiaries to allow them re-register for a new EAD through the following dates:
- May 1, 2018 for TPS beneficiaries from Sudan.
- July 4, 2018 for TPS beneficiaries from Nicaragua.
- July 21, 2018 for TPS beneficiaries from Haiti.
- September 5, 2018 for TPS beneficiaries from El Salvador.
Ordinarily, an expired EAD is not a valid document for purposes of confirming employment eligibility because employees eligible to work through EADs are ordinarily able to apply to renew their EADs before their original EADs expire. However, due to the special circumstances surrounding the temporary extension of employment authorization for TPS beneficiaries, a recently expired EAD in combination with evidence that the validity of the expired EAD was automatically extended is considered a valid List A document for TPS beneficiaries. USCIS has issued special instructions for the completion or correction of Form I-9s for TPS beneficiaries with expired EADs.
As provided in the Federal Register, an employee who presented a valid, TPS-related EAD at the time he or she began working must now present evidence that the employee’s EAD has been automatically extended. An employee may prove that his or her EAD has been automatically extended by presenting the recently expired EAD and by explaining that the EAD has been automatically extended through the applicable TPS program. The employee may also present a copy of the applicable Federal Register notice confirming the extension of his or her EAD. If the employee has already applied for a new EAD during the 60-day re-registration period, the employee may present a Form I-797C, Notice of Action along with the expired EAD bearing category A-12 or C-19 to confirm that his or her EAD has been automatically extended.
Once the employee presents evidence of continuing employment eligibility, employers should ask the employee to “correct” the expiration date of the employee’s employment authorization in Section 1 of the Form I-9 completed at the time of hire by drawing a line through the original expiration date and writing the extended expiration date above the previous date. The employee should then initial and date the correction in the margin of Section 1. The employer should then correct the employment authorization expiration date in Section 2 using the same procedure. Employers should not complete the Section 3 reverification until the employee presents a new EAD.
Employers enrolled in E-Verify will receive a “Work Authorization Documents Expiring” case alert when the automatic extension period is about to expire. Upon receiving this notification, employers should update the applicable employee’s Form I-9 using the process described above.
Before employees may begin work on the day following the last day of the automatic extension of their EAD, employers must re-verify their employment authorization. At that time, employees must present any document from List A or any document from List C on Form I-9 Lists of Acceptable Documents, or an acceptable List A or List C receipt. Importantly, employers may not specify which List A or List C document the employee must present and cannot reject an acceptable receipt.
Employers must then complete Section 3 of the most current version of the Form I-9 (dated 07/17/17N), and attach it to the previously completed Form I-9, if the employee’s original Form I-9 was a previous version.
Completing Form I-9 for New Employees Using Automatically Extended Employment Authorizations
New hires who are TPS beneficiaries may also present their expired EADs with category A-12 or C-19 for purposes of verifying employment eligibility, along with a copy of the applicable Federal Register notice, Form I-797C Notice of Action, or an explanation that their EAD has been automatically extended.
When completing the Form I-9 with an expired EAD bearing category A-12 or C-19, employees should enter the extended expiration date for their EADs, not the expiration date listed on the document. For Section 2, employers should determine if the EAD is extended by ensuring it is in category A-12 or C-19 and has a recent expiration date. Employers should also enter the extended expiration date in Section 2.
Some TPS beneficiaries may now have family relationships that would make them eligible for immigration benefits that would allow them to continue their employment and lawful residency in the United States. Any employees who may be eligible for an immigrant visa should begin those applications as soon as possible to avoid losing legal status when their TPS status expires. It may be worthwhile to meet with affected employees to notify them of the impending termination of their TPS status and to assist them in identifying any other avenues to employment eligibility and lawful residence that may be available to them. Because applications for immigrant visas can take months to be processed, it is imperative that affected employees take action now to preserve their legal status in the United States.
Deferred Action for Childhood Arrivals
While the administration has not yet indicated whether DACA beneficiaries will receive any continuing immigration benefits or employment authorization, we anticipate that employers will be required to take the same approach for DACA employees with expiring EADs as we have outlined above. Stay tuned for additional client alerts regarding DACA beneficiaries as this issue develops.