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
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:
- Take the individual at their word and keep the employee’s position
- 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.