By: Dawn M. Lurie and Alexander Madrak

With the recent slew of news from US Citizenship and Immigration Services (USCIS) concerning Temporary Protected Status (TPS), it is important employers know how to update Forms I-9 for TPS beneficiaries.  Over the last several months, we reported on USCIS terminating TPS for El Salvador, Nicaragua, and Haiti while deferring a decision for Honduras.  The debate in Congress surrounding the loss of status to almost 300,000 individuals continues to intensify.  Employers are also affected by the phase out of TPS as they consider how to handle the TPS beneficiaries in their workforce, some of whom have been with companies for many years.

As described below, Nicaragua, Honduras, and Haiti, have received temporary automatic extensions through the publication of their respective Federal Register notices; however, USCIS remains silent on how the automatic extensions will work for El Salvador (with TPS set to expire on September 9, 2019).   Admittedly, tracking work authorizations can be cumbersome even in the best of times.

What Does An Employer Need to Know?

U.S. Citizenship and Immigration Services (USCIS) designates that foreign nationals in certain employment eligibility categories, including TPS beneficiaries, who file an Application for Employment Authorization, Form I-765, may receive automatic extensions of their expiring Employment Authorization Documents (EADs) for up to 180 days.  The extension begins on the date the EAD facially expires, and work authorization continues for up to 180 days, unless the renewal application is denied.

Employees using a facially expired EAD card for work eligibility must present a Form I-797C, Notice of Action (I-797C) evidencing the filing of a new I-765.  Then, the employer should confirm:

  • The category on the face of the EAD must be the same category as on the I-797C. If the employee is a TPS beneficiary or pending TPS applicant, the EAD and I-797C must contain either the “A12” or “C19” categories, but the categories do not need to match;
  • The category must be eligible for an EAD automatic extension; and
  • The I-797C “Received Date” must be prior to the “Card Expires” date on the EAD.

If these conditions are met, USCIS considers the combination of the facially expired EAD and the I-797C as an unexpired EAD (Form I-766) under List A.  It is important to note, however, that not every I-797C automatically extends an EAD.  For example, an employee may receive an I-797C that schedules a biometrics appointment—this is not valid for an automatic extension.  It’s important to ensure that the I-797C is a receipt notice containing the above-mentioned information.

How Does an Employer Find the Information on the Documents?

a. Finding the Category Notation and Expiration Date on an EAD:

b. Finding the Auto-Extended EAD Information on the I-797C:

The eligible categories may be found on USCIS’ website, and currently include A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31, and A12 or C19.

Special Considerations for TPS

The rules for TPS automatic extensions can be confusing and ever changing.  According to USCIS:

“TPS individuals may receive an automatic extension of their employment authorization:

  1. Through publication of a Federal Register notice extending the TPS designation of the individual’s country, provided that the Federal Register notice also authorizes an automatic extension of covered individuals’ existing EADs; and/or
  2. Through this 180-day automatic extension.”

For example, USCIS recently extended the validity of employment authorization cards for individuals with TPS from Nicaragua, Honduras, and Haiti without requiring the presentation of an I-797C.  If your employee is a national of Nicaragua, Honduras, or Haiti and has an EAD containing the category code “A-12” or “C-19,” the EAD is automatically extended and the employee may continue to work through the end of the automatic extension period—without presenting a new EAD and without presenting a receipt notice.

For Nicaragua, these EADs have been automatically extended for 60 days, through March 6, 2018 and TPS will terminate on January 5, 2019.

For Honduras, these EADs have been automatically extended for 180 days, through July 4, 2018 and TPS will terminate on July 5, 2018,

For Haiti, these EADs have been automatically extended for 180 days, through July 21, 2018 and TPS will terminate on July 22, 2019.

Automatic Extensions are granted to TPS beneficiaries who timely re-register and file a request for a new EAD.

More information on TPS may be found here.  USCIS’ fact sheet for automatic extensions may be found here.