TPS Ending For El Salvador, Haiti & Nicaragua, And A Short Reprieve For Hondurans Still Waiting To Know Their Fate - Now What?

by Seyfarth Shaw LLP
Contact

Seyfarth Synopsis: The Department of Homeland Security ends Temporary Protected Status for El Salvador, Nicaragua, and Haiti, affecting close to 300,000 individuals.  Employers should be prepared to handle the influx of work authorization automatic extensions, expiring work authorizations, and other Form I-9 issues that may arise.

What Happened?

On Monday, January 8, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced the termination of Temporary Protected Status (TPS) for El Salvador.  El Salvador’s TPS designation was set to expire on March 9, 2018, but Secretary Nielsen delayed termination for 18 months to September 9, 2019 in order to “provide for an orderly transition.”  This decision affects an estimated 200,000 Salvadoran foreign nationals.

Similarly, Nicaragua’s TPS was set to expire on January 5, 2018, but was extended to January 5, 2019.   The Department of Homeland Security (DHS) also previously announced the termination of TPS for Haiti.  Haiti’s TPS termination was delayed for 18 months from the original expiration, with TPS now terminating on July 22, 2019.  Together, these decisions affect an estimated 5,300 Nicaraguan and 59,000 Haitian foreign nationals.

DHS has delayed its decision related to the future of TPS for Honduras, a country with an estimated 86,000 TPS beneficiaries.  Instead, USCIS published another Federal Register notice, extending Honduras’ TPS designation for six months until July 5, 2018.

With the termination of TPS for El Salvador, Nicaragua, and Haiti, fewer than 100,000 persons will remain beneficiaries of TPS.  Current TPS beneficiaries may remain in the United States, if eligible to seek an alternative immigration status.  For some Salvadorans in particular, this may be possible as there are an estimated 190,000 U.S. citizen children of Salvadoran TPS beneficiaries.  As some of them near the age of 21, they will be old enough to file family-based immigration petitions for their parents.

What is TPS and What Should Employers Know About It?

TPS allows foreign nationals to live and work in the United States if the Secretary of Homeland Security designates that the conditions in the foreign country prevent the country’s nationals from returning safely, or if the country is unable to handle the return of its nationals.  Because decisions to extend TPS have historically taken place with little notice and new Employment Authorization Documents (EADs) take many months to be issued, existing TPS EADs are automatically extended in order to allow for continued work authorization and limit disruption to the workforce.

Form I-9

Human Resources professionals and other individuals performing I-9 related duties should be familiar with how to complete the Form I-9 for individuals with TPS automatic extensions.  Where DHS automatically extends the validity date of the employee’s EAD, the employee does not need to also present an I-797C, Notice of Action (I-797C).  According to a recent notice issued by the Department of Justice, Immigrant and Employee Rights Section (IER) “if your employee has an Employment Authorization Document with an original expiration date of January 5, 2018 and containing the category code ‘A-12’ or ‘C-19,’ this EAD is automatically extended and the employee may continue to work without a new one (and without a receipt notice) through the end of the automatic extension period.”  TPS Honduras EADs have been automatically extended for six months, through July 4, 2018.  TPS Nicaragua EADs have been automatically extended for 60 days, through March 6, 2018.”  USCIS has not yet posted on auto-extensions for El Salvador. 

Information on when an employee may choose to show their EAD and I-797C is available in this USCIS Fact Sheet.  An I-797C comes in many forms, and the specific type that an employer should watch for is also known as a “Receipt Notice.”  Further discussion of how to complete a Form I-9 based on an automatic extension will be posted shortly on the Seyfarth Immigration Blog.

What Should Employers Do Now?

To the extent possible, employers with large TPS populations should encourage their employees to file applications for EADs as early as possible; for Salvadorans, it is important they receive the Form I-797C, before March 6, 2018, pending further guidance from USCIS.  USCIS has reminded employers that “filing early will help them avoid lapses in their employment authorization documentation.” 

Furthermore, understanding how to complete, update and maintain the Form I-9 is at the core of immigration compliance.  Timely completion and reverification, including recording an automatic extension, are essential to avoid fines and penalties by Immigration and Customs Enforcement (ICE).  For a detailed review of how to record TPS and other automatic extensions, visit the posted guidelines on the USCIS website.  The automatic extension is an interim (and potentially complicated) step, necessitating additional follow up after the automatic extension expiration and Section 3 updates.

Employers utilizing electronic Forms I-9 should ensure that these interim updates are recorded correctly by the software, both on the I-9 printout and in the electronic audit trail.  The immigration regulations at 8 CFR 274a.2 require that whenever an electronic I-9 is created, completed, updated, modified, altered or corrected, an electronic I-9 system must create a secure and permanent record that establishes the date accessed, who accessed it, and what action was taken.  Not all electronic I-9 vendors correctly support the complicated process that USCIS requires to record automatic extensions and relevant updates.  Accordingly, employers should ensure their vendors are actually adhering to compliance on an ongoing basis, not just taking for granted that everything is correct.

What Should Employers Consider Going Forward?

U.S. companies may wish to conduct an assessment of the number of potentially affected individuals in their employ.  As discussed, recent Form I-9 guidance and auto-extension rules generally require employers to now review and match employment eligibility basis codes with I-797C.  Reviewing, and perhaps tracking these category codes, which are listed on employment authorization documents, may provide a starting point to assess the impact of the loss of TPS beneficiaries on the workforce.  While a discussion of Deferred Action for Childhood Arrivals (DACA) is beyond the scope of this article, some companies are also considering a similar review of Forms I-9 in order to determine the number of employees in DACA status in an effort to plan with an eye towards ensuring workforce stability.  Such an undertaking should be implemented with the assistance of competent counsel to ensure that there are no anti-discrimination-based missteps.

With the recent termination of several TPS programs, including that of El Salvador and the possibility of termination for Honduras, the number of potentially affected individuals exceeds 300,000, with some being in the U.S. for two decades.  Despite respective countries lobbying the White House, Congress, and other stakeholders to retain their TPS designations, these recent decisions have demonstrated the administration’s continued interest in terminating the TPS program.  Coupled with the scheduled staggered termination of the DACA program, hundreds of thousands of individuals are set to lose their work authorization throughout 2019.  The Seyfarth Immigration Compliance and Enforcement Team will continue to keep employers up to date on Form I-9 obligations as well as the latest news from DHS. 

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.

© Seyfarth Shaw LLP | Attorney Advertising

Written by:

Seyfarth Shaw LLP
Contact
more
less

Seyfarth Shaw LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.