Form I-9 Alert: TPS for Haiti is ending, but automatic extension is now available
In late 2017, the Department of Homeland Security announced the termination of Temporary Protected Status (TPS) for Haiti, setting off a firestorm of discussion regarding the TPS program and the fate of the roughly 59,000 Haitian TPS beneficiaries residing in the US. Since then, the TPS debate has only intensified as the Trump administration announced the termination of TPS for El Salvador (200,000), Sudan (1,000), and Nicaragua (5,300) as well. Even more recently, the TPS issue gave rise to the now infamous January 11th Whitehouse meeting on immigration reform which involved “tough” language (the severity of which is still being hotly debated).
From an employer perspective though, these recent TPS announcements have created a real conundrum. Many TPS beneficiaries are currently in the workforce, and some have been with particular employers for many years – continually renewing their employment authorization documents (EADs). The termination of TPS for so many beneficiaries may have a wide-reaching impact on employers who must scramble to replace valued workers while also ensuring they comply with employment eligibility verification requirements.
And these requirements, in particular, can be as clear as mud. In announcing the end of TPS for Haiti, the DHS noted that they would provide “an orderly transition before the designation terminates on July 22, 2019” and “additional information once the Federal Register notice is published.” The problem, however, is that the current TPS status for Haiti nationals is set to expire in just 3 business days (Jan. 22, 2018), and no further information has been provided regarding an automatic extension of their work authorization on the USCIS website.
Fortunately, we obtained an advance copy of tomorrow’s federal register notice which (at long last) provides the necessary instructions (and legal justification) for continuing to employ Haiti TPS beneficiaries for an additional 180 days. Here’s what you need to know:
(1) The Federal Register Notice Provides an Automatic Extension for Haitian TPS
Once published on January 18, 2018, the Federal Register notice will automatically extend EADs issued under the TPS Haiti designation with a January 22, 2018 expiration date for 180 days, through July 21, 2018. Employees do not need to apply for a new EAD in order to benefit from this 180-day automatic extension, but employers must still perform certain Form I-9 steps (which are described in more detail below).
(2) TPS employees must re-register within a 60-day time window to maintain TPS beyond July 21, 2018
TPS Haiti beneficiaries who wish to maintain their TPS and receive a new EAD valid through July 22, 2019, must re-register during a 60-day time period. Given the current processing times at the USCIS, employers may (to the extent possible) wish to pass this news along to their general population in an effort to encourage TPS employees to file EAD renewals as soon as possible and avoid lapses in their employment authorization.
(3) Employers must update I-9s for existing TPS employees with auto-extended EADs
As many HR managers are painfully aware, the USCIS has a rather unique process for updating a Form I-9 to show continuing work authorization for an existing employee in TPS. As with other employees needing reverification, employers should first inquire with the individual regarding their continued employment authorization. In the case of an automatically extended TPS EAD for Haiti, employers are instructed to do the following:
- Review a copy of the employee’s current EAD to make sure it has an expiration date of January 22, 2018 and the notation A12 or C19 under the Category code on the front of the card (note, if you do not have a copy, you may request the original from the employee)
- In section 2 (or section 3 if the employee has been previously reverified), draw a line through the old expiration date, write the new auto-extended expiration date of July 21, 2018, and initial/date the changes. Employers should also write “EAD EXT” in the margin to help an ICE auditor understand the change at a later time.
- The official USCIS instructions also indicate that you “may” request that the employee update his or her previous expiration date in section 1 of the Form I-9 as well. The use of the word “may” implies that this is not strictly required, so employers have some leeway regarding whether or not they update section 1.
(4) Auto-extended EADs also satisfy I-9 requirements for new hires
If your newly hired employee presents an expiring or expired EAD which has been auto-extended by the federal register, employers are instructed to do the following:
- Examine the employee’s current EAD to make sure it has an expiration date of January 22, 2018 and the notation A12 or C19 under the Category code on the front of the card. And as usual, you should also make sure that the EAD reasonably appears to be genuine and relates to the employee presenting it.
- In section 1, the new hire should check “‘An alien authorized to work until’’ and enter July 21, 2018 (the automatically extended EAD expiration date) in the “expiration date, if applicable, mm/dd/yyyy” field.
- In section 2, the employer should first determine if the EAD is auto-extended for 180 days by ensuring it is in category A12 or C19 and has a January 22, 2018 expiration date. The EAD should be recorded as usual (document title, issuing authority, document number), but the employer should insert July 21, 2018 (the automatically extended EAD expiration date) in the section 2 expiration date field.
- If you are participating in E-Verify, you may immediately create an E-Verify case for the new hire (following the usual 3-day timeframe) by submitting the information that was entered on the Form I-9 (i.e., the current EAD information with the auto-extended date).
Employers should also be aware that TPS beneficiaries can demonstrate eligibility for the automatic extension of work eligibility by presenting a Form I-797C, Notice of Action that the employee received from the USCIS indicating their receipt of an EAD renewal application (see here for more information on auto-extended EADs). However, given the last-minute timing of the Haiti TPS re-registration period, it’s likely that most employers will need to follow the automatic extension process in the federal register as outlined above.
(5) 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 Haitian 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.