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Form I-9 Alert: DHS announces 9-month TPS extension for beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan

Today, the Department of Homeland Security (DHS) provided some very good news for hundreds of thousands of foreign nationals residing and working in the US under Temporary Protected Status (TPS) – a humanitarian program for nationals of designated countries that are confronting an ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions.

Specifically, DHS announced a Federal Register notice which provides a 9-month extension of TPS benefits for an estimated 400,000 beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan, each of whom faced a looming expiration of their status and work authorization next month.

The Battle for TPS

The Trump administration has been trying to end the various TPS designations for the past 3 years, arguing that most countries in the program have recovered from the related disasters or conflicts. A flurry of lawsuits ensued which have prevented DHS from terminating TPS for affected beneficiaries, while at the same time requiring the agency to continue providing TPS benefits.

DHS last published a notice to ensure its continued compliance with the various lawsuits on November 4, 2019, at which time they extended TPS through January 4, 2021 for all eligible TPS beneficiaries covered by the courts’ orders. Then, in September, the 9th Circuit Court of Appeals issued a devastating blow in one of the cases when they ruled that the TPS terminations were not subject to judicial review, paving the way for the Trump administration to officially end the programs.

However, according to the federal register notice announced today, DHS has deemed that the appellate order (affecting TPS recipients from Haiti, Nicaragua, El Salvador, Honduras and Sudan) is not currently “effective” because the Ninth Circuit has not issued any directive to carry out the order to the federal district court. Meanwhile, the injunctions in the other lawsuits remain in effect.

As a result, DHS is now extending the validity of TPS related documentation, including EADs, for beneficiaries of the six countries mentioned above until October 4, 2021.

Form I-9 Implications

Today’s announcement also includes instructions for how to properly complete the Form I-9 for employees who receive an automatic extension of their work authorization by virtue of the federal register notice. Broadly speaking, there are 2 main I-9 scenarios: newly hired employees and existing employees. We’ll examine each in detail below.

Newly hired employees

A newly hired employee in TPS may present an auto-extended EAD that has a category code of A-12 or C-19 and bears one of the expiration dates listed in the chart below. In each case, the employee should enter the new extended work authorization date of 10/4/2021 in Section 1 after selecting “Alien Authorized to Work”.

When completing Section 2, the employer should examine the EAD and record the document information, writing the extended 10/4/2021 date for the expiration. Before the start of work on October 5, 2021, the employer must reverify the employee’s work authorization.

Expiration Dates of TPS EADs that are auto-extended

Existing Employees

At the onset, you should first determine whether your employee previously presented a TPS-related EAD that is now eligible for an automatic extension under the DHS notice. If you retain copies of EADs and other documents, you can simply examine the copy to look for the A-12 or C-19 category code and one of the expiration dates listed above. If you do not retain copies, you may need to ask the employee to bring in their original EAD for inspection.

Once the document (or copy) has been reviewed, you should update Section 2 of the previously completed Form I-9 as follows:

  • Write EAD EXT and October 4, 2021, as the last day of the automatic extension in the Additional Information field; and
  • Initial and date the correction.

A couple of additional notes:

  1. DHS does not consider this update to be a reverification. Employers do not need to complete Section 3 until either this notice’s automatic extension of EADs has ended or the employee presents a new document to show continued employment authorization, whichever is sooner.
  2. By October 5, 2021, when the employee’s automatically extended EAD has expired, you must reverify the employee’s work authorization. If your original Form I-9 was a previous version (i.e., not the current 10/21/19 edition), you must complete Section 3 of the current version and attach it to the previously completed I-9.

Be careful of the Form I-9 anti-discrimination requirements

This latest federal register notice also reminds employers that I-9 processes and procedures for TPS beneficiaries are subject to various I-9 discrimination requirements and that the prohibition of unfair immigration-related employment practices “remains in full force.” This means that employers must ensure they do not treat TPS beneficiaries differently based on their citizenship, immigration status, or national origin. Practically speaking, employers should take note of the following:

  • Employers are prohibited from requiring the employee to present a particular document (such as a renewed or auto-extended EAD) to demonstrate continuing work authorization. Also, from a practical perspective, it’s possible that a TPS beneficiary may in fact have a new basis for continuing work authorization (perhaps through marriage to a US citizen).
  • If presented with EADs that have been automatically extended, employers should accept such documents so long as the EAD reasonably appears to be genuine, relates to the employee, and satisfies the requirements mentioned above (correct category, expiration date, etc.).
  • Employers may not request proof of a particular citizenship or proof of re-registration for TPS when completing the Form I-9 for new hires or reverifying the employment authorization of current employees.

As demonstrated above, the rules regarding TPS employees can be complex, requiring employers to perform a variety of I-9 tasks which may not be all that intuitive (auto-extending dates, updating portions of the I-9 with specific annotations, etc.). As with all things I-9 and immigration related, HR and compliance managers should remain vigilant in their compliance efforts through a comprehensive and coordinated effort involving advanced planning, communication, and continual efforts to stay informed of changes in the law.

In the meantime, if you have any questions or comments on this blog (including TPS reverification planning or electronic I-9 systems), please feel free to contact us here.

About John Fay

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 President at the LawLogix division of Hyland Software, Inc., where he oversees all aspects of the division’s operations and provides strategic leadership and direction in the development and support of Form I-9, E-Verify, and immigration case management software solutions.

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