Deadline Looms for Haitians as DHS Extends Temporary Protected Status

by Obermayer Rebmann Maxwell & Hippel LLP

A recent announcement by Homeland Security Secretary, John Kelly, carries an important message for employers concerned with I-9 Compliance.  On May 24, 2017, Secretary of Homeland Security, John Kelly, extended Haiti’s Temporary Protected Status (TPS) for six months, through January 22, 2018.   The deadline for current beneficiaries to re-register for Haiti’s TPS designation is July 24, 2017. If a Haitian TPS beneficiary timely re-registers and properly files an application for an Employment Authorization Document (EAD), his or her employment authorization will be automatically extended for an additional period of up to 180 days from the date the current EAD expires, i.e., January 22, 2018.   HR Legalist takes this opportunity to remind employers to stay on top of their I-9 compliance practices and make sure they are re-verifying their workers’ employment eligibility.  While Haitian TPS beneficiaries may be relatively few, over 300,000 foreign nationals from thirteen countries are currently in the United States in TPS, and many of these persons have EADs that must be renewed, and their I-9 forms reverified.

What is TPS? TPS is a humanitarian grant of temporary protection according to which the Secretary of Homeland Security may designate a foreign country for TPS in situations where conditions temporarily prevent the country’s nationals from returning safely, or where the country is unable to handle the return of its nationals adequately.   Such conditions include ongoing armed conflict (as in Syria) or a natural disaster, such as the earthquake that devastated Haiti on January 10, 2010.

In May 2017, Mr. Kelly confirmed that Haitian TPS would be extended for six more months, but also stated that there were “indications that Haiti — if its recovery from the 2010 earthquake continues at pace — may not warrant further…extension past January 2018.”  The Secretary will re-evaluate the designation for Haiti and determine whether a further extension is warranted.

Persons from a TPS designated country who are present in the United States, even if present illegally, may apply for certain benefits, such as:

  • They cannot be removed (deported) from the United States
  • They may obtain an employment authorization document (EAD)
  • They may be granted authorization to travel outside the United States and return freely
  • They cannot be detained by DHS on the basis of his or her immigration status in the United States.

While these are, to be sure, significant benefits, it is important to remember that TPS does not provide any immigration status and is not in itself a path to lawful permanent resident status (green card). However, being on TPS does not prevent someone from applying for another kind of immigration benefit for which they may be eligible, such as a nonimmigrant status or a marriage-based green card.

Currently, the following countries have been designated as TPS countries:

  • El Salvador
  • Guinea
  • Haiti
  • Honduras
  • Liberia
  • Nepal
  • Nicaragua
  • Sierra Leone
  • Somalia
  • South Sudan
  • Sudan
  • Syria
  • Yemen

To re-register, current Haitian TPS beneficiaries must submit an application prior to the July 24 deadline. If employment authorization is requested, then the application must be accompanied by a filing fee or a fee-waiver request.  Additional information about how to register or re-register for Haitian TPS is available at the USCIS website.

Employers should be mindful that employees who are working pursuant to a grant of Haitian TPS and who timely file to renew their EADs will receive an automatic extension of up to 180 days. For purposes of I-9 reverification, the employee may present his or her expired, or soon to expire, EAD and a receipt notice for his or her timely filed EAD extension based on Haitian TPS (the notice will bear the codes “A-12” or “C-19” which indicate that the EAD is automatically extended for 180 days).  The USCIS I-9 Central Web page provides additional detailed information about reverification for TPS beneficiaries.

As always, readers with questions or concerns about TPS or other immigration related matter are urged to consult trusted immigration counsel.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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