Form I-9 News: DHS extends TPS protection for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through December 2022
Last week, the Department of Homeland Security (DHS) provided some temporary relief 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 experiencing ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions that prevent such nationals from safely returning to their homelands.
Specifically, pursuant to a federal register notice, DHS extended TPS benefits for an estimated 400,000 individuals under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through December 31, 2022.
As many HR managers know, TPS extensions have ramifications for I-9 compliance – particularly, an employer’s obligation to not only ensure that employees have valid work authorization, but also that the proper documentation has been completed. Below is an FAQ that addresses I-9 and E-Verify related issues that may arise from this notice.
Why is DHS extending TPS for so many countries at once?
Previously, the Trump administration had ordered an end to TPS benefits for nearly all of the designated countries, which would have involved a gradual phase-out of the program. In response, many individuals and organizations sued the government, preventing DHS from terminating TPS for the affected beneficiaries, while at the same time requiring the agency to continue providing TPS benefits on an interim basis.
DHS last published a notice to ensure its continued compliance with the various lawsuits on December 9, 2020, at which time they extended TPS for the affected countries through October 4, 2021. By virtue of last weeks’ notice, DHS is now extending the validity of TPS related documentation, including EADs, for beneficiaries of the six countries mentioned above until December 31, 2022.
How can I tell if my employee’s TPS has been extended by this notice?
DHS has provided a list of eligible EAD expiration dates below issued to beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal. Each one of these has been extended through December 31, 2022. In addition, a beneficiary under the TPS designation for any of these countries who has applied for a new EAD but who has not yet received it is covered by this automatic extension, provided that the EAD he or she possesses contains one of the expiration dates listed in Table 1 below.
How do I complete an I-9 for a new hire impacted by this notice?
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 above. In each case, the employee should enter the new extended work authorization date of 12/31/2022 in Section 1 after selecting “Alien Authorized to Work”. The new hire should also enter their USCIS number or A-Number where indicated.
When completing Section 2, the employer should examine the EAD and record the document information in the List A column, writing the extended 12/31/2022 date for the expiration. Before the start of work on January 1, 2023, the employer must reverify the employee’s work authorization.
My organization participates in E-Verify. How do I enter the EAD information for a new hire whose document has been auto-extended by this notice?
E-Verify participating employers may create an E-Verify case as usual for a newly hired employee by entering the requested EAD information from the completed Form I-9, including the EAD’s document number and the December 31, 2022 expiration date.
How do update an I-9 for an existing employee impacted by this notice?
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 December 31, 2022, as the last day of the automatic extension in the Additional Information field; and
- Initial and date the correction.
Is an employee covered by this notice required to get a new EAD?
No. Your TPS employee does not need to apply for a new EAD in order to benefit from the automatic extension. They may, however, obtain a new EAD with a December 31, 2022 expiration date by filing a form I-765 application and paying the associated fee (or obtaining a fee waiver).
Should I validate the employee’s citizenship to ensure they are eligible for TPS?
No. Employers may not request proof of citizenship or proof of re-registration for TPS when completing Form I-9 for new hires or reverifying the employment authorization of current employees. In addition, when completing Form I-9, including reverifying employment authorization, employers must accept any documentation that appears on the Form I-9 Lists of Acceptable Documents that reasonably appears to be genuine and that relates to the employee. This includes an acceptable List A, List B, or List C receipt.
My employee is from Haiti. Does he or she need to apply for TPS under the new designation for Haiti?
During the summer, DHS issued a new TPS designation for Haiti effective August 3, 2021, through February 3, 2023. While your Haitian employee is not required to apply for a new TPS at this moment, DHS strongly encourages they do so before the close of the registration period on February 3, 2023. This will help ensure that their TPS continues beyond the court-ordered extensions and without any gaps in status.
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.