TPS And I-9s: Is My TPS Employee Authorized To Work? – General Immigration


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Temporary Protected Status (“TPS”) allows individuals
from certain countries designated by the Department of Homeland
Security (“DHS”). They are inside the United States to
apply for protections from removal that include eligibility for
Employment Authorization Documents (“EADs”). This period
of protection is granted for a limited time and is subject to
extension by the DHS. The current list of eligible nationalities is
available on the U.S. Citizenship and Immigration Services’
(“USCIS”) TPS website (link). Please note that employers
cannot ask individuals to prove that they are nationals of a
country designated for TPS when completing the Form I-9, Employment
Eligibility Verification. Consequently, employers with workers
employed with authorization based on TPS may face a confusing
situation when it comes to the initial completion and
reverification of the Form I-9.

With the Form I-9, employers are required to make a note of the
expiration date of employment authorization documents and reverify
the employee’s employment authorization before the expiration
date of the documents. However, EADs issued for TPS (in the A12 or
C19 categories) are subject to an automatic 540-day extension of
validity when an extension has been timely filed. (The USCIS
temporarily increased the automatic extension from the standard
180-day period to 540 days through October 26, 2023.) Employees can
evidence the automatic 540-day extension by showing an extension
receipt (Form I-797C, Notice of Action) and their expired EAD in
the same category. Details about the automatic extension process
are contained in the USCIS I-9 Handbook for Employers, available at
https://www.uscis.gov/i-9-central/form-i-9-resources/handbook-for-employers-m-274.

In addition, in some circumstances, TPS beneficiaries may be
able to show continued employment authorization without the Form
I-797C. DHS may extend the expiration date of a TPS
beneficiary’s EAD either by Federal Register notice or by an
individual notice sent to the beneficiary by the USCIS. In these
circumstances, employers are directed to complete reverification
using the EAD number (in the A12 or C19 category) and the
expiration date indicated in the Federal Register notice which can
be found on the USCIS’ TPS website or the individual notice
sent by the USCIS.

For employers who are unaccustomed to reviewing these documents
or navigating the USCIS’ I-9 Central website, completing a Form
I-9 for a TPS beneficiary can be very challenging. Suppose an
employer does not accept certain documents provided by an employee
for I-9 verification, asks for additional documents, or terminates
the employee for lack of documentation, depending on the facts. In
that case, this may violate the law and could result in a finding
of unfair documentary practices. As a result, employers must ensure
that they carefully review the I-9 rules pertaining to TPS prior to
taking any adverse action in the I-9 process.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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