On September 8, 2023, the Department of Homeland Security (DHS) announced it was extending the re-registration period for beneficiaries of Temporary Protected Status (TPS) under the designations of El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.  Today, the Secretary of DHS published a Federal Register notice (FRN) to officially announce the extension from the normal 60-days to the full 18-month designation period of each country.

DHS cites many factors for the re-registration extension, including the pending TPS litigation, beneficiary confusion, and operational challenges for U.S. Citizenship and Immigration Services (USCIS).  Since 2016, beneficiaries who are citizens of the countries named above have not been required to re-register and their TPS status was extended through a series of FRN’s.  Along with the TPS designations, work authorization extensions were granted to those who previously applied for and received employment authorization documents (EAD).

All affected existing beneficiaries from the six countries must re-register for TPS within the following periods:

• El Salvador July 12, 2023, through March 9, 2025
• Haiti January 26, 2023, through August 3, 2024
• Honduras November 6, 2023, through July 5, 2025
• Nepal October 24, 2023, through June 24, 2025
• Nicaragua November 6, 2023, through July 5, 2025
• Sudan August 21, 2023, through April 19, 2025

Beneficiaries must file a re-registration Form I-821 and Form I-765 to obtain an EAD.  The I-765 is optional for those who wish to receive work authorization in the United States.  Beneficiaries who have been issued EADs in the past are likely authorized to work in the U.S. based on automatic extensions issued by DHS since 2016.

For all U.S. employers, an understanding of TPS and the intricacies of recording work authorization extensions is imperative.  The “Additional Information” box in Section 2 of the Form I-9 is the correct location for employers to record all TPS beneficiary extensions based on the various FRN’s issued since 2016.  In the Additional Information box, the following format should be used for all existing employee extensions – EAD-EXT MM/DD/YYYY.  Most TPS extensions are documented in FRNs; however, for citizens of certain countries, DHS issues individual notices to beneficiaries.  Those notices are acceptable by employers and must be presented by beneficiaries to extend work authorization beyond the existing expiration date.  Employers must ensure for timely and continuous recording of beneficiary work authorization for every employee who presents an EAD at the time of hire and subsequent reverifications.

TPS beneficiaries who have been granted permission to work in the U.S. are issued EADs with the category codes of “C19” (individuals who have applied for TPS for the first time) or “A12” (beneficiaries granted TPS).  With the issuance of today’s FRN, employers will soon begin to see beneficiaries present their newly issued EADs as evidence of continued and extended work authorization.  In those instances, employers must complete Supplement B of the Form I-9 to document reverifications.  Employers cannot use older versions of the Form I-9 which was labeled as Section 3.  As per the newly issued Form I-9 guidance from DHS, all extensions and reverifications must be recorded on the latest version of the I-9.

Employers must also understand newly hired employees who have applied for or have been granted TPS may present expired EADs with extensions of work authorization via FRN’s or individual notices.  Most importantly, employers should not automatically reject expired EADs during the Section 2 processes of the Form I-9.  A prudent and best practice is for company representatives to always ask if the new employee has received a notice of extension from USCIS and in the case of TPS EADs (category codes A12 and C19), always check the webpage regarding FRN extensions (USCIS TPS webpage).  The following instructions from the latest Form M-274 Handbook for Employers must be followed when completing the Form I-9 in these instances:

In Section 1, new employees presenting an EAD automatically extended by a Federal Register notice or an individual notice must:

• Select “A noncitizen authorized to work until;” and
• Enter the EAD automatic extension date provided in the FRN or individual notice as the expiration date.

In Section 2, in the List A column, the employer must:

• Enter EAD in the Document Title field.
• Enter the document number from the EAD with Category A12 or C19, as applicable.
• Enter the automatic extension date provided in the FRN or individual notice as the document expiration date.

TPS and other DHS work authorization categories are very complicated and most often, confusing to beneficiaries and employers.  The COVID-19 pandemic and its impacts on USCIS resources unleashed a torrent of policy and extension notices in the last few years.