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USCIS releases I-9 Fact Sheet on Temporary Protected Status

The US Citizenship and Immigration Services (USCIS) has posted a new fact sheet on its website, which explains the special I-9 rules for foreign employees who are in “Temporary Protected Status” or TPS. The Immigration Service can grant TPS to eligible nationals of certain countries (or parts of countries) that have been designated for TPS due to ongoing armed conflict, environmental disaster, or other extraordinary and temporary condition. Six countries are currently designated, including El Salvador, Haiti, Honduras, Nicaragua, Somalia, and Sudan. Each country has its own designation period (usually 6 to 18 months), and the attorney general can extend the TPS period if conditions have not improved. Therein, however, lies the complication for I-9 purposes.   Foreign individuals who have been granted TPS and wish to work will apply for an Employment Authorization Document (EAD), which many employers recognize as a “List A” document which demonstrates both identity and work authorization. The expiration date on the EAD is usually the end of the TPS period, but what happens if that period is extended? Does the foreign worker need to immediately apply for a new EAD? Automatic EAD Extensions When the DHS extends a specific TPS country designation, it will usually issue a Federal Register notice, which contains an automatic extension of any expiring EADs for TPS beneficiaries from that country to allow time for USCIS to issue new EADs with updated validity dates.  The USCIS web site and the Federal Register notice will describe this EAD auto-extension and will note the date when the auto-extension ends.  The auto-extension is typically for 6 months, but the time period can vary. The I-9 Process for TPS beneficiaries with Expired EADs Under the current I-9 regulations (which went into effect on April 3, 2009), employers can only accept unexpireddocuments during the I-9 process. Despite this blanket rule, the USCIS has carved out a few instances where expired documents are acceptable, including the following scenario for TPS employees. If an employee presents an EAD for a TPS beneficiary that is expired on its face, you may nevertheless accept the document if you also have proof that the DHS has auto-extended work authorization for that particular TPS group. This proof should most likely be a copy of the federal register notice. For an example, FR notice issued on May 5, 2010, which auto-extends work authorization for Honduran TPS beneficiaries. The EAD should also contain the notation “A-12” or “C-19” under category and have an expiration date that is consistent with the Federal Register Notice. For Honduran TPS beneficiaries, the date would be July 5, 2010. Employers should then record the documents as follows: 1. Enter the document name, number, and expiration date in Section 2 under List A, noting the end of the auto-extension period as provided by the Federal Register Notice. Note, that according to USCIS guidance, you may not request that an employee provide proof that he or she is a national of a country that has been designated for TPS. 2. When the automatic extension of the EAD expires, you must reverify the employee’s employment authorization in Section 3 of the Form I-9 as usual (or on a new Form I-9, if that is your practice). Electronic I-9 Considerations If you’re using an electronic I-9 system and scanning supporting documents, you may wish to scan/upload a copy of the Federal Register Notice as proof of the auto-extension. In addition, if you have an employee whose EAD expires before the auto-extension goes into effect, you can choose to reverify that I-9 (listing the EAD and the new expiration date) and add a note (depending upon your system) to indicate that it was auto-extended by Federal Register Notice. For more information, check out the following online resources:

Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions concerning how TPS rules apply to your specific situation, please seek legal advice from a licensed professional attorney.