By: Dawn M. Lurie
Acting Secretary of Homeland Security Chad F. Wolf extended the Temporary Protected Status (TPS) designation for South Sudan for 18 months, from November 3, 2020 through May 2, 2022. Current beneficiaries who want to maintain their status must re-register Nov. 2, 2020, through January 4, 2021.
The announcement also stated that U.S. Citizenship and Immigration Services (USCIS) automatically extended the validity of certain Employment Authorization Documents (EADs) issued under the TPS designation for South Sudan through May 1, 2021. The information was published in the Federal Register on November 2, 2020.
How To Complete the Form I-9 for New Employees Presenting an Auto-Extended EAD
For Section 1 of the Form I-9, TPS beneficiaries should:
- Check “An alien authorized to work until” and enter May 1, 2021 as the expiration date; and
- Enter their USCIS number or A-Number where indicated
For Section 2, the employer should:
- Determine if the EAD is auto-extended by ensuring it is in Category A-12 or C-19 and has a Card Expires date of November 2, 2020;
- Write in the document title;
- Enter the issuing authority;
- Record the document number appearing on the employee’s EAD in the Document Number field on Form I-9; and
- Write May 1, 2021, as the expiration date.
How to Update the Form I-9 for Existing Employees
For a current employee, the employer should:
- Confirm that the document previously presented has been auto-extended by ensuring it is in Category A-12 or C-19 and has a Card Expires date of November 2, 2020;
- Record “EAD EXT until 05/01/2021” in the Additional Information field in Section 2; and
- Initial and date the update.
Employers should remember that updating a Form I-9 with an auto-extension is not a Section 3 reverification. Rather the auto-extension update for a current employee should be made on the existing Section 2 of the employee’s Form I-9.
The Federal Register states: “Employers do not need to complete Section 3 until either the 180-day automatic extension has ended, or the employee presents a new document to show continued employment authorization, whichever is sooner.”
By May 2, 2021, which is the day after the auto-extension expires, employers must reverify the employee’s employment authorization in Section 3 of Form I-9. Employers must use the correct version of the Form I-9, currently v.10/21/2019.
- An employer may not require employees to prove they are a national of a country that DHS has designated for TPS.
- TPS beneficiaries are not required to present a Form I-797C confirming that they re-registered for TPS.
This information is outlined in the Federal Register announcement which includes helpful Q&A:
- Can my employer require that I provide any other documentation to prove my status, such as proof of my South Sudanese citizenship or a Form I-797C showing I re-registered for TPS?
- No. When completing Form I-9, including reverifying employment authorization, employers must accept any documentation that appears on the Form I-9 Lists of Acceptable Documents that reasonably appears to be genuine and that relates to you, or an acceptable List A, List B, or List C receipt. Employers need not reverify List B identity documents. Employers may not request documentation that does not appear on the Lists of Acceptable Documents. Therefore, employers may not request proof of South Sudanese citizenship or proof of re-registration for TPS when completing Form I-9 for new hires or reverifying the employment authorization of current employees. If presented with an EAD that has been automatically extended, employers should accept such a document as a valid List A document, so long as the EAD reasonably appears to be genuine and relates to the employee.
What Else do Employers Need to Know?
Prior TPS Updates
Based on the litigation we previously blogged about, USCIS will extend, through January 4, 2021, the validity of certain TPS-related documentation (Employment Authorization Documents; Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record) for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, provided that the affected beneficiaries remain individually eligible for TPS. Employers may wish to view the USCIS website TPS page-, which offers country-specific TPS information.
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 2020, and expect this will continue regardless of the outcome of election. Immigration and Customs Enforcement’s long-term steady strategy includes worksite enforcement actions, the prosecution of employers, and Form I-9 inspections.
For questions regarding virtual I-9 policy, use of I-9 authorized representatives, I-9 compliance, defending employers involved in worksite enforcement audits or actions, E-Verify compliance, LCA and H-1B compliance and DOJ anti-discrimination matters, contact the Seyfarth Immigration Compliance and Enforcement Group or the author, Dawn M. Lurie, directly at email@example.com or 202.828.5327.