Form I-9 Alert: TPS benefits will be ending for Guinea, Liberia, and Sierra Leone

As many employers are keenly aware, there are a myriad of “special” Form I-9 rules and procedures for new hires and existing employees who possess temporary work authorization. The Form I-9 handbook (M-274) and I-9 Central website include a detailed (but not exhaustive) list of such scenarios including a rather unique process for individuals who are in temporary protected status (or TPS for short).

TPS is a temporary benefit provided to foreign individuals currently in the United States who are unable to return home to their country because of some extraordinary and temporary condition which prevents them from returning home safely (e.g., ongoing armed conflict, environmental disaster, health epidemic, etc.). Once granted TPS, an individual can apply for temporary work authorization in the US and receive an employment authorization document (EAD) – which as all you I-9 gurus out there are proudly aware is an acceptable List A Document.

But what happens when the individual’s EAD expires, or (as announced today) the DHS decides to terminate one or more countries from TPS designation? Read-on to learn about the latest TPS news and best practices for completing your I-9 forms properly!

DHS Announces Termination of TPS for Guinea, Liberia, and Sierra Leone

Today, the Department of Homeland Security (DHS) published notices in the Federal Register, announcing the termination of TPS for individuals from Guinea, Liberia, and Sierra Leone as of May 21, 2017. DHS first designated these countries for TPS in late 2014 in response to the widespread and fast moving Ebola virus epidemic in West Africa, which had overwhelmed health care systems and led to the deaths of more than 11,000 individuals. The DHS further extended the TPS designation earlier this year until November 21, 2016 (less than 2 months from now).

In the notices published today, the DHS indicated that all three countries are now Ebola free with steadily improving life and work conditions – thus leading to the termination of TPS benefits.

Orderly Transition and the Extended EAD

While TPS will soon be ending for these individuals, the DHS has provided for an orderly transition by automatically extending TPS and work authorization for qualified individuals until May 20, 2017 (a 6 month extension from the current November 21 expiration). Beneficiaries do not need to re-register for TPS or apply for a new EAD – an important point to note for employers.

But wait a minute, you say, how am I supposed to complete a new I-9 (or reverify an existing I-9) if the individual’s EAD is now expired on its face? I’m not allowed to accept expired documents, right? Well, yes and no. Let’s take a closer look by examining two common scenarios.

(1) New hire with auto-extended EAD

If a new hire presents an EAD with an expiration date of November 21, 2016 and a Category which indicates “A-12” or “C-19,” it has been automatically extended until May 20, 2017 by virtue of the Federal Register notices announced today. See illustration below for where the category is displayed on the EAD:

EAD_TPS1

The DHS also recommends the following I-9 procedure:

Section 1 (to be completed by the employee)

  1. Check “An alien authorized to work”
  2. Write the automatically extended EAD expiration date in the first space thereafter (for individuals from Guinea, Liberia, and Sierra Leone, you’ll write May 20, 2017)
  3. Write your alien number (USCIS number or A-number) in the second space (your EAD will have your USCIS number or A-number printed on it; note that the USCIS number is the same as you’re a-number without the A prefix)

Section 2 (to be completed by the employer)

  1. Record the EAD’s document title
  2. Record the Issuing authority
  3. Record the document number
  4. Record the automatically extended EAD expiration date (e.g., May 20, 2017)

As described above, this is one of those rare circumstances when you can actually accept an expired document (in this case, an EAD) because the document has (in essence) been extended by virtue of the federal register notice.

(2) Existing hire with auto-extended EAD

Employers must also follow special rules for documenting an automatic EAD extension for existing (i.e., current) employees through a review and correction process. Here’s how it works:

Section 1 (to be completed by the employee)

  1. Draw a line through the expiration date in the first space
  2. Write the automatically extended EAD expiration date (e.g., May 20, 2017) above the previous date
  3. Write “TPS Ext” in the margin of section 1
  4. Initial and date the correction in margin of Section 1

Section 2 (to be completed by the employer)

  1. Draw a line through the expiration date written in section 2
  2. Write the automatically extended EAD expiration date (e.g., May 20, 2017) above the previous date
  3. Write “EAD Ext” in the margin of section 2
  4. Initial and date the correction in the margin of section 2

Employers must also reverify employment authorization again (in section 3) in advance of the expiration date of the automatically extended EAD (e.g., May 20, 2017).

Lastly, it’s extremely important to remember that employers must accept any documentation that appears on the Form I-9 “List of Acceptable Documents” that reasonably appears to be genuine and relates to the employee presenting it. Employers may not request “extra documentation” such as proof of the individual’s citizenship or documentation related to the TPS application. Doing so many constitute an unfair documentary practice (see our recent article here for the perils associated therein!)

More Information Available on TPS

Below are some additional helpful links, including a recently updated video from the Office of Special Counsel on TPS in a nutshell.

  • TPS Definition from USCIS:

https://www.uscis.gov/humanitarian/temporary-protected-status

  • Video: Temporary Protected Status in a Nutshell: What HR Managers Need to Know:

https://www.justice.gov/crt/video/automatic-extension-tps

  • TPS Resources from the DOJ:

https://www.justice.gov/eoir/temporary-protected-status

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.