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.

Country

Re-Registration Period Ends

EAD Auto-Extended Until

TPS End Date

El Salvador

03/19/2018

09/05/2018

09/09/2019

Haiti

03/19/2018

07/21/2018

07/22/2019

Honduras

02/13/2018

07/04/2018

Nepal

12/27/2016

06/24/2017

Nicaragua

02/13/2018

07/04/2018

01/05/2019

Somalia

03/20/2017

South Sudan

11/20/2017

05/01/2018

Sudan

12/11/2017

05/01/2018

11/12/2018

Syria

09/30/2016

03/31/2017

Yemen

03/06/2017

09/03/2017

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.

US State Department Clarifies Implementation of Travel Ban Exemptions

The diplomatic cable instructs consulates on how to interpret the US Supreme Court’s direction to enforce the restriction only against foreign nationals who lack a “bona fide relationship with a person or entity in the United States.”

This Immigration Alert serves as an addendum to our prior summary of the Supreme Court decision partially granting the government’s request to stay enforcement of two preliminary injunctions that temporarily halted enforcement of Executive Order (EO) No. 13780. As a result of this decision, foreign nationals from six countries (Libya, Somalia, Sudan, Syria, Iran, and Yemen) who cannot show bona fide ties to the United States may be denied visas or entry for 90 days starting Thursday, June 29 at 8:00 p.m. EDT.

The communication from the US Secretary of State’s office enumerates the following situations where the EO’s travel restrictions will not apply:

  • When the applicant has a close familial relationship in the United States, which is defined as a parent (including parent-in-law), spouse, fiancé, child, adult son or daughter, son-in-law, daughter-in-law, or sibling, whether whole or half. This includes step relationships, but does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, or any other “extended” family members.

  • When the applicant has a formal, documented relationship with an entity formed in the ordinary course, rather than for the purpose of evading the EO. This includes established eligibility for a nonimmigrant visa in any classification other than a B, C-1, D, I, or K, as a bona fide relationship to a person or entity is inherent in the visa classification.

  • When there are eligible derivative family members of any exempt applicant.

  • When the applicant has established eligibility for an immigrant visa in the immediate relative, family-based, or employment-based classification (other than certain self-petitioning and special immigrant applicants).

  • When the applicant is traveling on an A-1, A-2, NATO-1 through NATO-6, C-2 for travel to the United Nations, C-3, G-1, G-2, G-3, or G-4 visa, or a diplomatic-type visa of any classification.

  • When the applicant has been granted asylum, is a refugee who has already been admitted to the United States (including derivative follow-to-join refugees and asylees), or is an individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Applicants admitted or paroled into the United States on or after the date of the Supreme Court decision are also exempted, as are those currently in the United States who can present a visa with a validity period that includes either January 27, 2017 (the day the EO was signed) or June 29, 2017. Any document other than a visa, such as an advance parole document, valid on or after June 29 will also exempt the holder.

As described in the prior alert, any lawful permanent resident or dual foreign national of one of the six named countries who can present a valid passport from a country not on the list is not impacted by the EO. The EO also permits consular officers to grant case-by-case waivers to otherwise affected applicants who can demonstrate that being denied entry during the 90-day period would cause undue hardship, that entry would not pose a threat to national security, and that their admission would be in the national interest.

This post was written by Eric S. Bord and Eleanor Pelta of  Morgan, Lewis & Bockius LLP.