Raise Your Hand If You’re Confused about I-9 Reverifications for Employees with TPS

Temporary Protected Status (TPS) is a humanitarian benefit available to foreign nationals who are unable to return to their home countries because of certain temporary conditions including ongoing armed conflict such as civil war, an environmental disaster like an earthquake, hurricane, epidemic, or other extraordinary conditions. During TPS designation, qualifying foreign nationals are not removable from the US and can obtain work authorization and travel permission.

The Department of Homeland Security (DHS) has recently terminated TPS for nationals of El Salvador, Haiti, Nicaragua, and Sudan but has granted a period of orderly departure to allow time for this population to wind up their affairs in the US. This has left employers in a quandary about which TPS holders remain able to work and how to comply with Form I-9 Employment Eligibility Verifications.

To help ease the confusion, the chart below illustrates TPS-designated countries, the dates by which beneficiaries were required to re-register and, for those who do re-register, how long their current Employment Authorization Cards (EAD) are automatically extended pending decisions of EAD renewal applications. The TPS termination dates for El Salvador, Haiti, Nicaragua, and Sudan are also included.


Re-Registration Period Ends

EAD Auto-Extended Until

TPS End Date

El Salvador




















South Sudan













As reflected in the chart above, sometimes DHS issues a blanket automatic extension of the expiring EADs for TPS beneficiaries of a specific country in order to allow time for EADs with new validity dates to be issued. The automatic extension periods are available to those TPS beneficiaries who timely re-register and apply to renew their EADs.

Although an employer cannot specify which documents an employee can present in connection with the I-9 Employment Eligibility Verification process, TPS beneficiaries with automatic EAD extensions may present an expired EAD bearing the C19 eligibility code along with a Form I-797C Notice of Action indicating the eligibility category code A12 or C19. The codes need not be the same.

The M-274 Handbook for Employers is an excellent resource in determining how to complete the Form I-9 for those employees with automatic EAD extensions. It specifies that:

“For a current employee, update Section 2 of Form I-9 with the new expiration date as follows:

  • Draw a line through the old expiration date and write the new expiration date in the margin of Section 2;

  • Write EAD EXT in Section 2;

  • Initial and date the correction.”

For TPS beneficiaries, the new expiration date should correspond with the respective date as noted in the chart above. An employee whose employment authorization is automatically extended along with his/her EAD may cross out the “employment authorized until” date in Section 1, write the new expiration date as reflected in the chart, initial and date the change.

A new employee may present the expired EAD and Form I-797C Notice of Action indicating USCIS’s receipt of the employee’s timely filed renewal application. When completing Section 1, the employee should enter the corresponding date from the chart in the “employment authorized until mm/dd/yyyy” field.

When completing Section 2, the employer should enter into the Expiration Date field the date the automatic extension period expires, not the expiration date on the face of the expired EAD. The employer should enter the receipt number from the I-797C Notice of Action as the document number on Form I-9. Note that reverification is required when the employee’s automatic extension ends.

While an employer is not required to be an expert in I-9 documents and review, having access to reliable resources comes in handy and will take you to the head of the class.


Copyright © 2018 Womble Bond Dickinson (US) LLP, All Rights Reserved.
This post was written by Jennifer Cory of Womble Bond Dickinson (US) LLP.

Draft Form I-765V, EAD Application for Abused Nonimmigrant Spouse: Comments Open

nonimmigrant spouseOn May 27, USCIS posted for comment on the Federal Register draft versions of Form I-765V, Application for Employment Authorization for Abused Nonimmigrant Spouse and its instructions. Under section 106 of the Immigration and Nationality Act, abused spouses of certain nonimmigrants are eligible for employment authorization: i.e., the spouses of foreign nationals in the following nonimmigrant categories:

  • A-1, A-2, and A-3 (foreign government diplomats and officials and their immediate family members, attendants, servants, and personal employees);

  • E-3 (Australian specialty occupation workers);

  • G-1, G-2, G-3, G-4, and G-5 (employees of foreign governments and international organizations and their immediate family members, attendants, servants, and personal employees);

  • and H-1B, H-1B1, H-2A, H-2B, H-3, and H-4 (specialty occupation workers, Free Trade Agreement professionals from Chile and Singapore, temporary agricultural and non-agricultural workers, trainees and special education exchange visitors, and immediate family members of specialty occupation workers).

Earlier this year, March 8, 2016, USCIS released a Policy Memorandum regarding the eligibility of such applicants. Pursuant to the memo, along with the Form I-765V EAD application, credible evidence should be presented to prove various eligibility factors, including that the applicant resides in the United States, that the applicant is or was (under specific circumstances) married to the qualifying principal nonimmigrant spouse, that the applicant was last admitted to the United States in nonimmigrant status, and that the applicant or the applicant’s child was abused or subject to extreme cruelty by the principal nonimmigrant spouse. If approved, the EAD should be granted for two years. Supporting documentation should include copies of the marriage certificate, evidence of the abuse, and I-94 records and biographical identification documents of both the applicant and the principal spouse.

The draft EAD application Form for abused nonimmigrant spouses is six pages, while the regular Form I-765 used by applicants eligible for employment authorization under other bases is only one page. Form I-765V requests information not only on the applicant’s immigration status, but also on biographical physical features including ethnicity, race, height, weight, and eye and hair color. Form I-765V also allows for information to be completed regarding a safe mailing address and an interpreter. Further, the draft Form requests an Applicant’s Certification regarding the authenticity of documents and release of information. USCIS estimates that completing the application Form and preparing the documentation will take three hours per response.

USCIS encourages comments on the draft Form I-765V. Specifically, USCIS seeks feedback regarding whether the proposed collection of information on the form is necessary, the burden on the applicants to compete the form, the accuracy of USCIS’ estimate of the burden of the proposed collection of information, and the clarity, quality, and utility of the information to be collected. Comments will be accepted for 60 days, until July 26, 2016. All comments should reference OMB Control number 1615-NEW and Docket ID USCIS-2016-0004. Comments can be made online, by email, or by mail.

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