Over the past several months, the Department of Homeland Security (DHS) has terminated temporary protected status (TPS) designation for Sudan, Nicaragua, Haiti and El Salvador. The citizens of these countries in TPS will lose their work authorization and the right to remain in the United States.  A federal court in California recently entered a preliminary injunction prohibiting the termination of TPS for these countries.  On October 31, DHS issued a Notice in the Federal Register to comply with the preliminary injunction.

Individuals in TPS designations for Sudan, Nicaragua, Haiti, and El Salvador will retain their TPS designation while the preliminary injunction is in effect. In addition, DHS has automatically extended the employment authorization documents (EAD) of TPS beneficiaries from Sudan and Nicaragua through April 2, 2019.  The automatic extension through April 2, 2019 applies to nationals of Sudan and Nicaragua provided:

  1. Their EAD has the Category Code A-12 or C-19.
  2. Their EAD has an expiration date of 11/02/2017, 01/05/2018, 11/02/2018, or 01/05/2019.

The EADs of TPS beneficiaries from Haiti and El Salvador are not automatically extended because their EAD cards currently expire on July 22, 2019 (Haiti) or September 9, 2019 (El Salvador).

DHS will issue another Notice approximately 30 days before April 2, 2019, to extend TPS related documents for an additional nine months for all affected individuals under TPS designation from Sudan, Nicaragua, Haiti, and El Salvador.

The Notice also provides guidance for employers regarding E-Verify and Form I-9. If an E-Verify employer receives a “Work Authorization Document Expiring” case alert for an employee with an auto-extended TPS EAD, DHS instructs the employer to dismiss the case alert.

When using an automatically extended EAD to complete Form I-9 for a new hire before April 2, 2019, the employer should do the following:

  1. Determine if the EAD is auto-extended by ensuring it is in category A-12 or C-19 and has an expiration date of 11/02/2017, 01/05/2018, 11/02/2018, or 01/05/2019.
  2. Write April 2, 2019 as the expiration date.

In the case of a current employee taking advantage of the automatic extension of his or her EAD, the employee and employer should do the following:

  1. Employee:
    • Draw a line through the expiration date in Section 1.
    • Write April 2, 2019 above the previous date.
    • Initial and date the correction in the margin of Section 1.
  2. Employer:
    • Determine if the EAD is auto-extended by ensuring it is in category A-12 or C-19 and has an expiration date of 11/02/2017, 01/05/2018, 11/02/2018, or 01/05/2019.
    • Draw a line through the expiration date written in Section 2.
    • Write April 2, 2019 above the previous date.
    • Initial and date the correction in the Additional Information field in Section 2.

The employer must re-verify the employee’s Form I-9 on or before April 2, 2019.

We will continue to keep you advised of developments impacting the work authorization of TPS nationals from Sudan, Haiti, El Salvador, Nicaragua, and Honduras.