Co-authored by Greg Morano*
Seyfarth Synopsis: The US Citizenship and Immigration Services (USCIS) rules concerning auto extensions of employment authorization and Temporary Protected Status (TPS) can be confusing, and it is important employers know how to update Forms I-9 for TPS beneficiaries. We have previously reported on USCIS terminating TPS for El Salvador, Nicaragua, and Haiti while initially deferring a decision for Honduras. Since then, the government terminated TPS for Nepal on 05/22/2018 and for Honduras on 06/05/2018. The decision affects approximately 9,000 Nepalese foreign nationals and approximately 57,000 Honduran foreign nationals.
What Happened?
The Department of Homeland Security (DHS) has terminated TPS for Nepal and Honduras with delayed effective dates. For Honduras, TPS will terminate on January 5, 2020. For Nepal, TPS will terminate on June 24, 2019. This means that TPS recipients of the respective countries have until the above-mentioned dates to continue to live, and, if so authorized, work in the United States.
What Does An Employer Need to Know?
DHS has issued blanket automatic extensions of the expiring Employment Authorization Documents (EADs) for Nepalese and Honduran TPS beneficiaries through the publication of their respective Federal Register notices. This means that employment authorization has been extended automatically for this group of individuals. These employees may continue to work without a new EAD (and without a receipt notice, which is required for other types of auto extensions) through the end of the automatic extension period.
Honduras
USCIS announced on June 5, 2018 that they will issue new EADs with a January 5, 2020 expiration date to eligible Honduran TPS beneficiaries who timely re-register and apply for EADs. Since not all Honduras TPS re-registrants will receive new EADs before their current EADs expire, those with January 5, 2018 or July 5, 2018 expiration dates have been automatically extended until January 1, 2019.
Honduran TPS beneficiaries may reference the Federal Register notice along with an EAD marked with an expiration date of January 5, 2018 or July 5, 2018, and with a category code of A-12 or C-19, as evidence of current work authorization through the end of the automatic extension period, January 1, 2019. According to the Federal Register notice, individuals with a January 5, 2018 expiration date may show their EAD indicating the January 5, 2018 expiration date and a new EAD application receipt (Notice of Action, Form I-797C) that notes the application was received on or after December 15, 2017, as proof of continued employment authorization through January 1, 2019.
Nepal
USCIS announced on May 22, 2018 that they will issue new EADs with a January 24, 2019 expiration date to eligible Nepalese TPS beneficiaries who timely re-register and apply for EADs. Since not all Nepalese TPS re-registrants will receive new EADs before their current EADs expire on June 24, 2018, the Federal Register notice has automatically extended Nepalese TPS EADs until December 21, 2018.
Nepalese TPS beneficiaries may use the Federal Register notice, along with an EAD marked with an expiration date of June 24, 2018 and with a category code of A-12 or C-19, as evidence of current work authorization.
How Do I Update the Employee's Form I-9?
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. The employee will not. The employer should:
For Section 1, the employee may:
- Draw a line through the expiration date.
- Write the new expiration date next to the previous, now crossed out, date. The new date for Honduras is January 1, 2019 and it is December 21, 2018 for Nepal.
- Initial and date the correction in the margin of Section 1.
For Section 2, the employer should:
- Draw a line through the expiration date written in Section 2.
- Write the new expiration date next to the previous, now crossed out, date. The new date for Honduras is January 1, 2019 and it is December 21, 2018 for Nepal.
- Initial and date the correction in the margin of Section 2.
What's Next?
Altogether, the administration has terminated TPS for hundreds of thousands of individuals with little hope for congressional action in the near future. Depending on the makeup of the their workforce, employers may be severely affected by the phase out of TPS. As we have noted in the past, employers may wish to consider any avenues available for a future immigration sponsorship of any of these employees and also how they will handle the exit of TPS beneficiaries in their workforce, some of whom have been with companies for many years.
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
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