By: Dawn M. Lurie, Alexander Madrak and Greg Morano*
United States Citizenship and Immigration Services (USCIS) issued automatic extensions of Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from Nicaragua, Honduras, Haiti, and most recently, El Salvador. Employers should be prepared to recognize these automatically extended EADs and correctly handle the resulting influx of Form I-9 updates.
What’s the Latest on TPS?
While the government is back in business, the path to immigration reform seems as tumultuous as ever. The chances to reverse the termination of TPS are slim, and the impact is slowly beginning to sink in for TPS beneficiaries and employers alike. An Immigration Forum Fact Sheet on TPS notes: “Recent data estimate that TPS holders from El Salvador, Honduras, and Haiti contribute a combined $4.5 billion in pre-tax wages or salary income annually to our nation’s gross domestic product.”
What Do Employers Need to Know?
We continue to report on both the demise of the TPS program and automatic extension via the Federal Register of the affected beneficiaries’ EADs. Nicaragua, Honduras, Haiti, and El Salvador have received this type of automatic extension. Admittedly, tracking work authorizations for employees can be cumbersome even in the best of times; our post “More Form I-9 Confusion for Employers: TPS and Limited Automatic Extensions” assists employers with breaking down responsibilities for completing the Form I-9 for individuals with TPS-based work authorization. For El Salvador, the population is especially large with an estimated 200,000 TPS beneficiaries in the United States.
In its most recent move with El Salvador, USCIS automatically extended the validity of these EADs for 180 days, through September 5, 2018. The USCIS website states: “If you are a TPS beneficiary under the El Salvador designation and your EAD is based on your TPS status with an original expiration date of March 9, 2018, your EAD is covered by this automatic extension and you may continue to work through Sept. 5, 2018, using your current EAD.”
To demonstrate that an El Salvador TPS beneficiary is authorized to continue working legally, he/she may show the following documentation:
- A TPS-related EAD with a March 9, 2018 expiration date; and
- A copy of the Federal Register notice announcing the automatic extension.In the meantime, employers and employees alike are under pressure as they try to sort out next steps and possible options after the termination of TPS. TPS beneficiaries may consider family-based sponsorships (by immediate family members) or in some cases, employment-based sponsorships; such relief, though, may be minimally available. Accordingly, employers should gear up for the far reaching economic impacts of the termination of TPS and the loss of work authorization for nearly 300,000 individuals and counting.
- Employers can rely on the Federal Register notice as evidence of the continuing validity of EADs. If USCIS approves an El Salvador TPS beneficiary’s re-registration request, and the employee applied and paid for an EAD, then USCIS will issue a new EAD with the expiration date of September 9, 2019.
It is critical the those responsible for the Form I-9 process understand how, and when, to record TPS auto-extensions and Section 3 updates. This is to avoid exposure to fines and penalties associated with incorrectly completed Form I-9s. We’ve written about an increase in enforcement activity in 2018, as the Administration plans to “reduce the demand for illegal employment and protect employment for the nation’s lawful workforce”. Immigration and Customs Enforcement has warned the public that the agency’s strategy includes worksite enforcement actions, the prosecution of employers, and Form I-9 inspections. Be prepared.
*Not admitted to the practice of law