By: Dawn M. Lurie and Greg Morano*
On March 1, 2019, the Department of Homeland Security (“DHS”) announced that it would continue to preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. As we have previously written, to comply with the federal court order in Ramos et al. v. Nielsen et al, DHS’s Federal Register Notice (“Notice”) yet again protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua, Sudan, Haiti, and El Salvador are now automatically extended through January 2, 2020.
Warning folks, this is a dense read, with complicated directions for those people in your organization that deal with the day to day of Form I-9s. If that’s not you, pass this blog post on to the right person, and move on with your day.
On Oct. 3, 2018, in Ramos, et al. v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) (PDF, 458 KB), the U.S. District Court for the Northern District of California enjoined DHS from implementing and enforcing the decisions to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador, pending further resolution of the case. Accordingly the government has been forced to continue to extend work authorization for individuals benefiting from the decision.
What is an Automatic Extension and How Do I Know if My Employee is Eligible?
The automatic extension means that certain employees with expired work authorization documents may continue to work without interruption. As a result, employers will need to update the affected employee’s Forms I-9. For assistance with identifying automatically extended documents and executing the automatic extensions, see our prior post here.
Provided that the affected TPS beneficiaries remain eligible for TPS, properly applied for TPS re-registration, and their individual TPS has not been withdrawn, the Notice automatically extends the following documents for Sudanese, Nicaraguan, El Salvadoran, and Haitian TPS employees through January 2, 2020:
- TPS Employment Authorization Documents (EADs) with category codes of “A-12” or “C-19”; 2. Forms I-797 Notice of Action (Approval Notice); and 3. Forms 94 that were previously issued to eligible beneficiaries granted TPS under the designations for these countries.
For the EADs, they must have had one of the following expiration dates:
- 07/22/2017
- 11/02/2017
- 01/05/2018
- 1/22/2018
- 03/09/2018
- 11/02/2018
- 01/05/2019
- 04/02/2019
- 07/22/2019
- 09/09/2019
Sudanese, Nicaraguan, El Salvadoran, and Haitian TPS beneficiaries may show the Notice and their EAD to their employer to demonstrate their automatic extension through January 2, 2020.
For the Forms I-94 and I-797, they must have received one of the following validity dates for Sudan, Nicaragua, El Salvador and Haiti:
Sudan
| Beginning date of Validity | End date of Validity |
| May 3, 2016 | November 2, 2017 |
| November 3, 2017 | November 2, 2018 |
Nicaragua
| Beginning date of Validity | End date of Validity |
| July 6, 2016 | January 5, 2018 |
| November 3, 2017 | January 5, 2019 |
Haiti
| Beginning date of Validity | End date of Validity |
| July 23, 2017 | January 22, 2018 |
| January 23, 2018 | July 22, 2019 |
El Salvador
| Beginning date of Validity | End date of Validity |
| September 10, 2016 | March 9, 2018 |
| March 10, 2018 | September 9, 2019 |
What about people that were working with Notices of Continued Evidence of Work Authorization?
USCIS had previously mailed Notices of Continued Evidence of Work Authorization (NCEWA) to individuals who were eligible for a prior, additional 180-day automatic extension. El Salvadorans who had received an NCEWA notice extending work authorization through March 4, 2019, may now use the Federal Register Notice, in combination with their current expired EAD, as evidence of current work authorization. By March 4th, an auto extension should be recorded on the Form I-9s as explained below.
How Do I Update the Employee’s Form I-9 for the Automatic Extensions?
If you have an existing employee who presented an EAD that has now been automatically extended, the employee’s Form I-9 should be updated to reflect the extension.
For Section 2, the employer should:
- Draw a line through the expiration date written in Section 2;
- Write the new expiration date next to the previous, now crossed out, date.
- Initial and date the correction in the margin of Section 2.
For Section 3, the employer should:
- Draw a line through the expiration date written in Section 3;
- Write the new expiration date next to the previous, now crossed out, date.
- Initial and date the correction in the margin of Section 3.
For individuals who are still working based on the Notice Continued Evidence of Work Authorization, the auto extension should be recorded similarly to above with the new date and information recorded in Section 2 or Section 3, crossing out the Notice information that had previously served as an extension.
Those companies using electronic I-9 systems should refer to their providers, as always, for specific guidance on the mechanics of completing auto extensions.
More information on TPS may be found here. USCIS’ fact sheet for automatic extensions may be found here.
What Else Do Employers Need to Know?
It is critical that those responsible for the Form I-9 process understand how, and when, to record TPS auto-extensions and Sections 2 and 3 updates. This avoids exposure to fines and penalties associated with incorrectly completed I-9s. We’ve written about the tremendous increase in enforcement activity in 2018, and watched the Administration “reduce the demand for illegal employment and protect employment for the nation’s lawful workforce.” It’s clear that Immigration and Customs Enforcement (ICE) plans to continue building on a strategy that includes worksite enforcement actions, the prosecution of employers, and Form I-9 inspections. Be prepared for 2019 as ICE continues using Form I-9 audits and civil fines to encourage compliance. We also anticipate a renewed focus on the IMAGE program and other employer outreach in an attempt to partner with employers acting in good faith and reserve their attention for egregious violators.
*Not admitted to the practice of law.