The Department of Homeland Security (DHS) announced on March 1, 2019, an extension of the Temporary Protected Status (TPS) for qualifying individuals from El Salvador, Haiti, Sudan, and Nicaragua. DHS also announced a nine-month automatic extension of these TPS beneficiaries’ Employment Authorization Documents (EADs), allowing beneficiaries to work in the United States until January 2, 2020. The Department took this action to ensure its continued compliance with the preliminary injunction order of the U.S. District Court for the Northern District of California in Ramos v. Nielsen, No. 18–cv–01554 (N.D. Cal. Oct. 3, 2018).

The announcement provided welcome news to employers awaiting word on whether they could continue to employ individuals with work authorization expiring on March 4, 2019. However, the January 2, 2020, extension could change in the future depending on the outcome of the lawsuit.

For now, employers should be prepared when reviewing employment documentation of new or current employees from these four countries. Taking an adverse employment action against a TPS beneficiary under the mistaken belief that they cannot work because their EAD card is expired can subject a company to investigation by the Department of Justice’s Immigrant and Employee Rights Section and can result in significant fines. Current employees from these four countries who are TPS beneficiaries need not provide any further documentation to continue working. However, employers must take steps to update these employees’ Form I-9s to remain complaint with federal law.

The Federal Register notice provides guidance to employers on updating Form I-9s for existing employees. Specifically, the notice instructs:

For Section 1, the employee should:

  • Draw a line through the work authorization expiration date in Section 1;
  • Write 1/2/20 above the previous date; and
  • Initial and date the correction in the margin of Section 1.

For Section 2, employers should:

  • Determine if the Employment Authorization Document (EAD) is auto-extended by confirming the EAD’s code category is A12 or C19 and has one of the following expiration dates:

If the EAD is auto-extended:

  1. Draw a line through the expiration date in Section 2;
  2. Write 1/2/20 above the previous date; and
  3. Initial and date the correction in the Additional Information field in Section 2.

The notice also provides specific instructions for completing Form I-9s for new hires falling under TPS protected status.

This notice received little attention upon its release, but it has a far-reaching impact on employers throughout the United States. For employers and HR professionals, understanding and complying with this Federal Register notice will help mitigate risk and avoid potentially costly mistakes.