DHS Extends Validity of TPS Documentation for Six Countries

The US Department of Homeland Security (DHS) on November 1 extended the validity of Temporary Protected Status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan through January 4, 2021. Accordingly, the validity of Employment Authorization Documents (EADs); Form I-797, Notice of Action; and Forms I-94, Arrival/Departure Record, has been automatically extended to January 4, 2021.

This extension is pursuant to preliminary injunctions from several pending federal lawsuits. If the government prevails in its challenge to the preliminary injunction, then the decision to terminate TPS for Nicaragua and Sudan will take effect no earlier than 120 days from the issuance of any appellate mandate to the district court. The decision to terminate TPS for El Salvador will take effect no earlier than 365 days from the issuance of any appellate mandate to the district court to allow for transition for affected TPS beneficiaries.

US Citizenship and Immigration Services (USCIS) issues TPS beneficiaries an EAD if the beneficiary requests one. Employers may be presented with an EAD or any other combination of documents from the “List of Acceptable Documents” to complete Form I-9 when hiring the employee. If an employee presents an EAD that is expired on its face, employers should verify if it is a TPS EAD (category section states “A-12” or “C-19”) that has been automatically extended and therefore valid for Form I-9 purposes. Employees do not have to provide proof that they are a national of a country that has been designated for TPS.

• For new employees who present a TPS EAD that is expired on its face but has been automatically extended, employers should complete Section 2 of Form I-9 by recording the document title, document number, issuing authority, and the date the EAD has been automatically extended to as the expiration date.
• For existing employees who present an EAD when first completing Form I-9, and DHS has automatically extended the EAD, employers should complete Section 2 of Form I-9 by writing “TPS Ext.”, the date of the automatic extension, and initial and date the correction in the Additional Information area.

At the end of the automatic extension date, employers are required to reverify Form I-9 unless another automatic extension is announced. When reverifying an employee’s work authorization, employers should complete Section 3 of Form I-9 with the documents presented by the employee that demonstrates he or she continues to be authorized to work in the United States. For further information, please review the Form I-9 guidance as well as the chart below for TPS EAD expiration dates current as of the date of this Lawflash.

CONTACTS

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Miami
Laura C. Garvin