Government Watchdog Calls Out USCIS for Inconsistent I-9 Guidance Relating to TPS
In an April 2020 report, the Government Accountability Office (GAO) found that the USCIS has not provided employers with consistent guidance regarding Temporary Protected Status (TPS) documentation that may be accepted during the Form I-9 process. For many organizations, this will not come as a surprise. The Form I-9 rules regarding TPS employees can be complex, requiring employers to understand the program (at least at a foundational level) and 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.).
And yet this GAO study reveals an even greater concern – amidst the confusion surrounding TPS, and employers’ highly motivated desire to avoid employing undocumented workers, some individuals may be unjustly denied employment altogether.
In a nutshell, TPS is a form of humanitarian protection that allows eligible foreign nationals from designated countries to stay and work in the US for a temporary period of time. Countries may be designated for TPS on the basis of statutory criteria relating to armed conflict (such as civil war), an environmental disaster (such as an earthquake or hurricane), or some other extraordinary and temporary condition in the country that prevent the individuals from returning home safely.
Since TPS was first established in 1990, 22 countries have received TPS designations. According to DHS records cited in the GAO study, more than 400,000 TPS beneficiaries were living in the US during fiscal year 2018, including nationals from El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, and Yemen. Since that time, the Secretary of Homeland Security has announced decisions to terminate TPS for six countries – although these actions have largely been suspended due to litigation.
The Secretary of DHS can designate a country for TPS for periods of 6 to 18 months and extend these periods if the country continues to meet the conditions for designation. For example, as of the end of FY2019, Somalia’s designation has been extended 21 times. Under the Immigration and Nationality Act, DHS must publish decisions to extend or terminate a country’s TPS designation in the Federal Register on a “timely basis.”
TPS and the Form I-9 Process
Individuals granted TPS are eligible for employment authorization, and the USCIS will issue an Employment Authorization Document, Form I-766 (EAD) to those who request one. However, TPS workers, like all employees, have the right to provide their choice of valid documentation to demonstrate their identity and work authorization.
For the most part, completing I-9s for individuals with TPS EADs is a relatively straightforward process. The tricky part arises when the EADs are automatically extended.
When a country’s TPS designation is extended, the USCIS will often issue a “blanket extension” of all expiring EADs for that country in order to give themselves time to process all of the EAD renewals that are filed during the re-reregistration period. When EADs are automatically extended for eligible TPS beneficiaries, the documents will appear to have expired even though they remain valid.
And therein lies the rub. Many employers are unfamiliar with the TPS program, and the idea that a document can be “auto-extended” may sound too strange to be believed (especially when the information is coming from the new hire). When that happens, employers may improperly terminate employment (in the case of an existing employee) or deny employment (when a new hire TPS beneficiary is being I-9’d for the first time).
Notifications of TPS Extensions
The GAO study found that part of the problem stems from inconsistent (and incomplete) instructions from the USCIS to employers. According to USCIS officials, DHS primarily uses the Federal Register to inform and communicate automatic extensions of TPS EADs. However, in some cases, they may instead use individually mailed notifications to TPS beneficiaries.
The sending of these individual letters (formally known as “Notices of Continued Evidence of Work Authorization) can be problematic for both the employee and employer. For example, in 2018, the USCIS’ Haiti TPS website indicated that the notices were not mailed to applicants until after their July 21, 2018 work authorization expiration date. In other cases, the TPS beneficiary may not have received the letter at all. To make matters worse, in 4 out of 5 cases examined by the GAO, the USCIS did not post a notice in the Federal Register communicating the automatic extension to the public.
The GAO also noted that the individual letters instruct beneficiaries to show the notifications, along with their expired EAD, to any US employer as proof of continued employment authorization. However, the Form I-9 Handbook for Employers (M-274) – what many in HR consider to be the “I-9 bible” – does not specifically identify individual mailed notifications as an official means of communicating these extensions. Even the Form I-9 instructions (which have grown in size over the years) is silent on how the USCIS informs employers of automatic EAD extensions.
When an employer is unfamiliar (or skeptical) of an EAD extension, they may do some research and find TPS information on the USCIS website, including details about the TPS extension and the acceptable forms of documentation. In many other cases though, the employer may simply reject the expired EAD altogether based on their understanding that all documents (per the Form I-9 rules) must be unexpired.
As proof that this type of improper rejection is occurring, the GAO study specifically cites the DOJ’s Immigrant and Employee Rights Section (IER) telephone intervention program, which allows an employee or employer to talk with IER staff about Form I-9 issues and resolve potential immigration-related employment disputes.
According to the GAO, IER intervened on approximately 50 occasions from September 2017 through May 2019 to deter employers or medical licensing boards from rejecting valid work authorization documents. And in some cases, IER’s intervention prevented employers from improperly terminating employment for TPS beneficiaries whose employment authorization documents had been automatically extended.
The GAO study also references a letter signed by 70 law professors and scholars which urged the USCIS to use Federal Register Notices, instead of individual mailed notifications, to extend EADs for TPS beneficiaries. The law professors argued that the use of these individual letters raised questions regarding their legal sufficiency and ultimately contributes to the termination of lawfully authorized workers from employment.
Response from the USCIS
The USCIS acknowledged the potential benefits of updating their external guidance regarding automatic TPS extensions and noted that they planned to update both the M-274 and their I-9 central website with more information (expected completion date was noted as April 30, 2020).
As of this writing, those documents have not yet been updated…but this may be due, in part, to the recent flurry of COVID-19 policies and updates that the agency has been implementing.
Lessons for Employers
As many HR managers 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 are good resources for learning about these processes, but employers must also be prepared for situations (like TPS) where the government guidance may be incomplete.
As with many areas in the I-9 compliance world, I highly recommend engaging experienced immigration counsel to help you manage these tricky I-9 scenarios. Employers can also avail themselves of the IER’s free hotline (mentioned above) when they have questions about acceptable forms of immigration documentation. The calls can be made anonymously too.
IER’s anonymous worker or employer hotlines (language interpretation available)
Monday-Friday, 9:00 a.m. – 5:00 p.m. Eastern Time: Worker Hotline: 1-800-255-7688
Employer Hotline: 1-800-255-8155
Last but not least, you can use a specialized electronic I-9 system to guide you through the proper way of completing an I-9 for an auto-extended EAD. A well-designed electronic I-9 system will not only ensure you’re completing I-9s according to the government’s often-confusing rules, but will also help create consistent practices and procedures – a goal which is generally considered a best practice in avoiding I-9 related discrimination.