United States: DHS Complies With Court Order, Preserves TPS For Four Countries

Last Updated: November 20 2018
Article by Dawn M. Lurie and Greg Morano

Seyfarth Synopsis: On October 31, 2018, the Department of Homeland Security ("DHS") announced that it would preserve the Temporary Protected Status (TPS) designations for Sudan, Nicaragua, Haiti, and El Salvador. To comply with the federal court order in Ramos et al. v. Nielsen et al, DHS's Federal Register Notice ("Notice") protects the TPS designation for each country and provides automatic extensions to existing work authorization documents. TPS and related documentation for Nicaragua and Sudan are now automatically extended through April 2, 2019. The TPS expiration dates for El Salvador and Haiti remain unchanged; September 9, 2019 for El Salvador and July 22, 2019 for Haiti.

TPS: What is the Status of the Program?

The Trump Administration attempted to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador. On October 3, 2018, a federal judge issued a preliminary injunction to prevent the termination of TPS and loss of work authorization for TPS beneficiaries. The court case is ongoing with DHS appealing the injunction order to a higher court.

If the court case is not fully resolved by the time a designated TPS is set to terminate, DHS will issue a Federal Register notice extending TPS documentation for nine months. This means that your employees will continue to work without interruption, but you will need to update Forms I-9 with the "Auto-Extensions". For assistance with identifying automatically extended documents and executing the automatic extensions, see our prior post here.

If a higher court permits DHS to terminate TPS, the beneficiaries' status will terminate either 120 days after the court order, or on the TPS termination date, whichever is later.

Seyfarth will continue to monitor the court case and provide updates.

Federal Register Notice Provides Automatic Extensions for Sudan and Nicaragua

Provided that the affected TPS beneficiaries remain eligible for TPS, properly applied for TPS re-registration, and their individual TPS has not been withdrawn, the Notice automatically extends the following documents for Sudanese and Nicaraguan TPS employees through April 2, 2019- TPS Employment Authorization Documents (EADs) with category codes of:

  • "A-12" or "C-19";
  • Forms I-797 Notice of Action (Approval Notice); and,
  • Forms 94.

For the EADs, they must have had one of the following expiration dates for Sudan or Nicaragua:

  • 11/02/2017
  • 01/05/2018
  • 11/02/2018
  • 01/05/2019

Sudanese and Nicaraguan TPS beneficiaries may show the Notice and their EAD to their employer to demonstrate their automatic extension through April 2, 2019.

For the Forms I-94 and I-797, they must have had one of the following dates for Sudan or Nicaragua:

Sudan

Beginning date of Validity End date of Validity
May 3, 2016 November 2, 2017
November 3, 2017 November 2, 2018

Nicaragua

Beginning date of Validity End date of Validity
July 6, 2016 January 5, 2018
November 3, 2017 January 5, 2019

Haitian and El Salvadoran TPS Work Authorization Document Expiration Dates Remain Unchanged

Haitian and El Salvadoran TPS beneficiaries who were approved for re-registration have either received, or will receive, TPS-related documentation that they may present as evidence of work authorization. Specifically, Haitian TPS beneficiaries will have TPS-related documentation valid through July 22, 2019 and El Salvadoran TPS beneficiaries will have valid documentation through September 9, 2019. The recent automatic extensions announced in the Notice do not apply to them.

How Do I Update the Employee's Form I-9 for the Sudan and Nicaragua Automatic Extensions?

If you have an existing employee who presented an EAD that has now been automatically extended, the employee's Form I-9 should be updated to reflect the extension.

For Section 2, the employer should:

  1. Draw a line through the expiration date written in Section 2;
  2. Write the new expiration date next to the previous, now crossed out, date.
  3. Initial and date the correction in the margin of Section 2.

For Section 3, the employer should:

  1. Draw a line through the expiration date written in Section 3;
  2. Write the new expiration date next to the previous, now crossed out, date.
  3. Initial and date the correction in the margin of Section 3.

What Do Employers Need to Know?

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 an increase in enforcement activity in 2018, as the Administration plans to "reduce the demand for illegal employment and protect employment for the nation's lawful workforce." Immigration and Customs Enforcement (ICE) continues to warn the public that the Agency's strategy includes worksite enforcement actions, the prosecution of employers, and Form I-9 inspections. Recent events, including early morning raids and a record breaking number of Notices of Inspection (NOIs) confirm that ICE means business. Be prepared.

More information on TPS may be found here. USCIS' fact sheet for automatic extensions may be found here.

*Not admitted to the practice of law.

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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Dawn M. Lurie
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