What is TPS?

Even employers with Form I-9 experience can struggle with temporary protected status (TPS) procedures. In the simplest of terms, TPS is a designation that may be awarded to nationals of specifically identified countries that cannot get safely back home. In some instances, these individuals may then be eligible to work in the United States. This can present problems for employers trying to navigate TPS protocol in combination with the Form I-9.

 

What Is TPS And How Does It Work?

TPS was created by Congress via the Immigration Act of 1990 and is an acronym for the term “temporary protected status.” If a specific country is having problems (war, natural disasters, etc.), that in turn creates challenges in a national being deported there, TPS may be temporarily awarded.

In other words, if a national is supposed to be deported back to their country but it is deemed unsafe to do so, that individual may be eligible for this type of temporary immigration status. An individual receiving this temporary immigration status is given a work permit and a stay of deportation.

The key to TPS is the determination of which countries are considered as having problems such as civil war, hurricanes, epidemics, or other life-threatening safety issues. That authority lies with the Secretary of Homeland Security, and they can award the TPS designation for a time period of only six, twelve, or eighteen months at a time. This decision is made after extensive consultations with other government agencies such as the National Security Council and Department of Justice.

Some examples of countries that have or have had TPS designation include:

  • El Salvador
  • Haiti
  • Honduras
  • Nepal
  • Nicaragua
  • Somalia
  • Sudan
  • Syria
  • Yemen

In order to be eligible for TPS, a person must meet specific qualifications. A TPS designation is not guaranteed to an individual simply because they are a national. The process of attaining TPS can be involved and registration must usually be done during a specific window of time. Fees are also generally applicable.

 

How TPS Affects Work Eligibility

Once an individual is granted TPS, they also receive temporary authorization to work in the United States and a temporary stay of deportation. Those who receive TPS are eligible for an Employment Authorization Document (EAD), also known as Form I-766, provided by U.S. Citizenship and Immigration Services.

 

How TPS Relates to the Form I-9 And What It Means for Employers

With a TPS and EAD in place, the individual and their employer should be able to complete a standard Form I-9 without much of an issue.

Ironically, the TPS and Form I-9 are still a regular issue further down the line for many employers that can affect their compliance status with the federal government. Why? The reason has to do with the automatic extension of Employment Authorization Documents.

If a certain country’s TPS designation is prolonged, it is not uncommon for the U.S. Citizenship and Immigration Services to do a universal extension of all expiring Employment Authorization Documents from that country. This is done primarily to give them time to process EAD renewals.

The catch is that even though the EAD has technically been extended by the U.S. government, that extension does not show up on the individual’s papers and documents. This often results in an employer erroneously believing that an employee’s documents have expired and are no longer valid.

Although some EAD extensions are noted in the Federal Register, they are reportedly not always done so in a timely manner. In other cases, an individual with a TPS designation may be the one notified about the extension of their EAD via a Notice of Continued Evidence of Work Authorization letter. The problem is that for one reason or another, some TPS beneficiaries never receive these letters. At this point, an employer is at a crossroads. They may either:

  1. Take the individual at their word and keep the employee’s position
  2. Terminate an employee’s position

Both situations can have negative consequences depending on if the EAD was actually extended or not.

To complicate things even further, the popular resource of the Form I-9 Handbook for Employers (M-274) which is used as an I-9 how-to-guide does not necessarily recognize an individual’s letter about the EAD extension as official.

What this can mean for employers is noncompliance with the federal government if it is discovered that:

  • they wrongly continued to hire an individual when their EAD had expired
  • they wrongly terminated an employee because they erroneously thought their EAD had not been extended when it really had

 

A Word About Form I-9 Compliance

If a company is found to be noncompliant with the Form I-9 process, which may include documents such as EADs, there can be negative consequences. In general, consequences for noncompliance may range from financial penalties to a loss of workforce to a company closing. Being found noncompliant is not a position you want to be in.

 

If you have questions regarding what TPS is or if you have Form I-9 concerns, please reach out to Lookout Services today to see how we can help.

How To Handle An I-9 Investigation

If you are a business who employs people in the United States, make no mistake about it—you need to know how to handle an I-9 investigation. While typically not every single business is subjected to one of these inquiries, they are happening with increasing frequency in recent years. It is in a company’s best interest to be prepared because being found non-compliant during an I-9 investigation can carry heavy penalties.

 

How Does A Company Know If They Will Be Investigated?

Simply put, you won’t know.

Most I-9 investigations come without warning and arrive in the form of a Notice of Inspection (more commonly referred to as an NOI) via U.S. Immigrations and Customs Enforcement (ICE). Although getting served with an NOI can be alarming in and of itself, panic tends to multiply once an employer realizes that they have only three days to provide investigators with the documentation they require.

 

I-9 Investigations, Audits, and Raids

If your company undergoes an I-9 scrutiny, it usually does so via one of the following two scenarios:

  1. ICE Audit
  2. ICE Raid

While both types of investigations can be performed by U.S. Immigrations and Customs Enforcement in regard to the Form I-9, that is where the similarities end.

A typical audit is the more common of these two types of investigations and can have more of an administrative feel to it. An NOI is served and Form I-9 documentation is requested within three days. These audits can include court subpoenas for documents, and review of these documents is often quite thorough, sometimes taking three to six months to resolve. Don’t let the administrative nature of this type of investigation fool you. If there are paperwork errors found that are uncorrected or that show significant errors in judgement, there can be substantial fines and penalties.

The other form of investigation, an authorized raid, can be more stressful as it is more immediate in nature. Raids can include the inspection of a business and a request for their documentation and has more legal heft behind it as it is usually authorized by a judge. Although the results of the paperwork associated with a raid can take some time to properly sort out, companies in severe violation of I-9 compliance could potentially see arrests made on the spot in some cases.

 

What Kind of Documentation Do Investigators Typically Require?

It can be helpful to think of an I-9 audit similarly to a tax audit. For a tax audit, individuals are required to have a paper or digital trail of purchases and tax deductions to submit to federal agencies. ICE audits work similarly in that they typically require companies to provide a large amount of documentation that pertains to Form I-9 practices.

Because the number of Form I-9 audits are estimated to be on the rise, companies should make haste to ensure that they can easily access the below information and documentation in the event of an ICE audit:

  • Original Form I-9s for all current employees
  • Original Form I-9s that are being retained per federal guidelines
  • Copies of Form I-9 supporting documents
  • No-match social security letters on file
  • E-Verify confirmations for employees

 

Companies that utilize digital I-9 software are still required to provide these same items, and some additional items in the form of:

  • Electronic files and electronic signature processes
  • Easy to follow audit trails
  • Demonstration of digital I-9 software
  • Demonstration of secure access to electronic files

 

In addition, some general information companies will want to have handy for investigators can include:

  • Company owner name and contact information
  • List of employees (including temporary workers and subcontractors)
  • Payroll information
  • Company tax statements for the last three years
  • Contact and address information for all company locations

 

Potential Investigative Outcomes

Regardless of the type of investigation performed by authorities, any failure to be compliant with proper Form I-9 protocol could result in one of the following outcomes:

  • Warning: A warning notice can come as the result of verification violations that were found during the course of the investigation, but that may not merit a fine if the employer promises future compliance in good faith.
  • Notice of Technical or Procedural Failures: This type of notice alerts employers to the presence of technical violations. From the time of receipt, the employer has approximately ten days to correct any issues before they become considered violations.
  • Notice of Discrepancies: Receiving a Notice of Discrepancies typically means that the investigators were not able to determine if one or more employees are indeed eligible to be working for the company.
  • Notice of Suspect Documents: This is a further step in the wrong direction than the above. A Notice of Suspect Documents usually means that investigators have found that one or more employees are in fact not eligible to work. Companies typically have the opportunity to prove that the investigators’ determination was an error. However, if unable to do so, it could result in substantial consequences if a company continues to employ the said individual(s).
  • Notice of Intent to Fine: This kind of notice usually translates to significant problems for a company. A Notice of Intent to Fine is issued if there are uncorrected or substantive violations or if a company knowingly hires or continues to employ those employees not eligible to work. Companies receiving this notice may be issued heavy punitive fines or other consequences.

 

Don’t Wait for an Audit or Raid to Be Investigation-Ready

One of the most important things a company can do when considering how to handle an I-9 investigation is to be as proactive as possible. Five steps that companies should follow to ensure they are better prepared for an investigation are:

  1. Know proper Form I-9 protocol and train all managers accordingly.
  2. Provide periodic refresher courses for those involved with Form I-9 processes.
  3. Depend on digital I-9 software from a reputable provider to help minimize error and audit complications.
  4. Conduct quarterly audits to stay on top of any compliance issues that may arise.
  5. Prepare a file with some of the general company information required by investigators so it is ready to go upon request.

 

If you have questions about how to handle an I-9 investigation, please reach out to Lookout Services today for answers.