Over the past three months, the Biden administration has expanded immigration benefits for foreign nationals on humanitarian grounds. Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) are two such humanitarian benefits that permit certain foreign nationals to live and work in the United States with government-issued employment authorization documents.
Procedures for the Form I-9, Employment Eligibility Verification, relating to individuals with TPS and DED are complicated and subject to change. Employers may want to familiarize themselves with these procedures to ensure proper completion of Forms I-9 in these verification scenarios. Employers may also wish to review immigration-related antidiscrimination laws to avoid inadvertently engaging in discrimination in relation to individuals with TPS or DED.
Introduction to Temporary Protected Status
TPS allows individuals of designated countries to lawfully remain and work in the United States, even if they entered without authorization or overstayed their authorized visa status. TPS designations often involve an armed conflict, environmental disaster, or other temporary conditions preventing an individual’s safe return to the designated country.
For example, on March 29, 2012, the U.S. Department of Homeland Security (DHS) added Syria to the list of countries designated for TPS due to temporary conditions caused by the civil war in that country. Current TPS-designated countries include Burma, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria, Venezuela, and Yemen.
U.S. officials generally grant TPS and related work authorizations to individual applicants in increments of up to 18 months, with renewed TPS and work authorizations becoming available as officials renew country-specific TPS designations. Policy updates are published in the Federal Register. There are complex, date-specific deadlines for renewal, provisions for automatic extensions of employment authorization, and detailed procedures for conducting Form I-9 verifications unique to the designated country.
TPS and the Form I-9
Employees are required to complete Section 1 of the Form I-9 on or before the first date of work for pay. Within three business days of hire, employees are required to present documents of their choice from the list of acceptable documents provided by U.S. Citizenship and Immigration Services (USCIS) for Form I-9 verification purposes.
Individuals with TPS generally choose to present a Form I-766, Employment Authorization Document (EAD), issued under category A12 (TPS granted) or C19 (TPS applicant). Employers can find the EAD category printed on the face of the EAD card. An unexpired EAD is acceptable proof of identify and employment authorization, and can be recorded in List A of Section 2 of the Form I-9.
Completing the Form I-9 for Automatic Extensions of TPS Employment Authorization
U.S. officials regularly issue automatic extensions to expiring or expired EAD cards for TPS workers, and publish these automatic extension dates in the Federal Register and on USCIS webpages that provide TPS updates for designated countries. Employers may want to consult these resources to determine whether the documentation presented by an employee is sufficient evidence of continued work authorization.
In some cases, a worker with TPS will present an expired EAD card. A Form I-797, Notice of Action (receipt notice), presented by the TPS worker, may be evidence of a timely filed renewal application, and it may be acceptable evidence of continued employment authorization. DHS may also issue blanket extensions of employment authorization, regardless of when the TPS worker applied for renewal.
In recording automatic EAD extensions for current workers, employers are required to record extended expiration dates in the “Additional Information” field of Section 2 on the Form I-9. In this field, employers will write “EAD EXT” and the automatic extension expiration date. For example, on or before current EAD expirations for Syrian TPS workers, employers would record this updated expiration date in the “Additional Information” field as follows: “EAD EXT 9/27/2021.”
Employers have been instructed to reverify the individual’s work authorization in Section 3 of the Form I-9 on or before the automatic extension expiration date. At the reverification stage, TPS workers generally choose to present the original renewed EAD card for reverification purposes, but in some cases, the TPS worker may not yet have a new EAD but may still be eligible for automatic extension.
Introduction to Deferred Enforced Departure
Like TPS, DED allows individuals of designated countries to remain and work in the United States. Presidents use their discretionary power in managing foreign relations in designate DED for specific countries. At this time, only Liberia and Venezuela are designated for DED, with U.S. officials granting EADs for work authorization during approved DED periods.
DED and the Form I-9
Completing Forms I-9 for workers with DED is similar to completing Sections 1 and 2 for TPS workers, but the category listed on the employee’s EAD card will be A11. As with TPS, individuals with DED are frequently granted automatic extensions on EAD expiration dates. The procedures outlined above for TPS workers also apply to recording these automatic extension dates on the Form I-9.
Avoiding Pitfalls
Employers may want to be aware that inquiring about an employee’s country of origin could give rise to allegations of discrimination. Employers may also want to keep in mind that when an employee presents an expired EAD card in the A12, C19, or A11 categories corresponding to TPS or DED, investigation may be needed to determine whether DHS has automatically extended the employee’s EAD expiration date. If the foreign national does not know which documents to present in demonstrating continued employment authorization, it may be appropriate to point to the A12, C19, or A11 category notations, and talk generally and hypothetically about the relevant verification procedures above.
Ogletree Deakins’ Immigration Practice Group will continue to monitor immigration policy developments, as well as the Form I-9 employment eligibility verification process, and will post updates on the firm’s Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
