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Friday, May 21, 2010

USCIS provides TPS Guidance to Employers and Employees

The CIS has provided both employers and TPS beneficiary employees with guidance on the treatment of expired EADs that have been automatically extended by Federal Register notice. “Documentation Employers May Accept and Temporary Protected Status Beneficiaries may present as Evidence of Employment Eligibility.”

Temporary Protected Status (TPS) programs afford a designated group of persons a period of temporary legal status, usually called “voluntary departure,” with the ability to obtain employment authorization, typically for humanitarian reasons. The TPS recipient may present an Employment Authorization Document (EAD) (Form I-766) that is expired on its face. That EAD will have been automatically extended by a Federal Register notice which describes which EADs have been automatically extended.

TPS recipients may also present the employer with a copy of the applicable Federal Register notice providing other details including the expiration date of the automatic extension. The automatically extended EAD is a List A document, with an expiration date which requires reverification.

For I-9 purposes, employers are provided with instructions for categorical identification of TPS EADs:

"1. The notation “A-12” or “C-19” appears on the face of the EAD under “Category.”
2. The expiration date of the most recent TPS extension period on the face of the card. This date will appear in the Federal Register notice announcing the auto-extension of EADs and may also be found at www.uscis.gov/tps."

Employers are provided with the following Section 2 I-9 guidance:

"Employers should enter the document name, number, and expiration date in Section 2 under List A, noting the end of the auto-extension period. You may not request that an employee provide proof that he or she is a national of a country that has been designated for TPS.

When the automatic extension of the EAD expires, you must reverify the employee’s employment authorization. The employee may choose to present an unexpired EAD with an updated expiration date, or any other document from List A or C of Form I-9 evidencing that he or she continues to be authorized to work in the United States. You should enter the document name, number and expiration date in Section 3 of the Form I-9.

In addition to completing the Form I-9 process described above, employers that participate in E-Verify may also confirm the employment authorization of the TPS beneficiary by submitting the required data from the Form I-9 to E-Verify. However, the employer may only check the employment authorization of new hires through E-Verify. If the TPS beneficiary is a current employee, the employer may not use E-Verify to confirm employment authorization and should complete only the reverification required in Section 3 of the Form I-9."

Significantly, employees who are TPS beneficiaries are provided with parallel guidance for presentation of the automatically-extended EAD with a past expiration date, and reverification instruction. Moreover, the CIS provided separate OSC employer and employee hotline numbers and web addresses for information and for anti-discriminatory employee reports.