Employers are reminded to "auto extend" the work authorization of eligible nationals by recording the necessary information on their Form I-9s. In the coming weeks, employment authorization documents (EAD)s for a number of employees from countries designated with Temporary Protected Status (TPS) are due to expire. Two countries with upcoming expiration dates in need of auto-extending are El Salvador (current expiration: March 9 or 10, 2015) and Syria (current expiration: April 1, 2015).
An employee's work authorization date must be updated on the Form I-9 prior to the expiration of employment authorization. Having a system in place to ensure these expirations are tracked and identified can minimize an employer's liability significantly.
In January, US Citizenship and Immigration Services (USCIS) automatically extended current TPS El Salvador Employment Authorization Documents (EADs) that have a March 9, 2015, expiration date for an additional six months. These existing EADs are now valid through September 9, 2015. Overall TPS for El Salvador was extended an additional 18 months, now effective March 10, 2015 through September 9, 2016.
The Department of Homeland Security (DHS) extended and redesignated the TPS for 18 months from April 1, 2015 through September 30, 2016. DHS also automatically extended the validity of EADs issued under the TPS designation of Syria for six months, through September 30, 2015.
If an employee or new hire is a TPS beneficiary from any one of the designated countries and presents a TPS-related EAD, this employee is authorized to work legally in the United States during the validity of the EAD, and the employer must accept the document (provided the document reasonably appears to be genuine on its face and relates to the employee presenting it). Remember, the limited validity of the work authorization cannot be used as a basis to deny employment. For guidance on how to complete the Form I-9 for newly hired nationals from previously designated TPS countries please refer to our previous alert on the subject. The technical guidance is transferable to all designated countries.
Completing an Auto Extension on Form I-9
Understanding how to complete, update and maintain the Form I-9 is at the core of immigration compliance. Timely completion, including auto extension, is essential to avoid fines and penalties by Immigration and Customs Enforcement (ICE). It is critical that the Form I-9s of existing employees be updated prior to the upcoming expiration. Accordingly, for Form I-9s relating to existing TPS employees who presented EAD cards at hire (when the EAD has been automatically extended) the employer should follow the following steps on the EAD card:
- Draw a line through the expiration date for the EAD written in Section 2;
- Write the new date to which that the EAD has been extended above the previous date;
- Write "TPS Ext." in the margin of Section 2 (ensure your changes are legible); and
- Initial and date the correction in the margin of Section 2.
Subsequent Section 3 Updates
Once the automatic extension of the EAD expires (September 9, 2015 for El Salvadorian and September 30, 2015 for Syrian nationals), employers must reverify the employee's employment authorization in Section 3. The employee may choose to present his or her new EAD, or any document from List A or C of Form I-9 that shows he or she has continuous authorization to work in the United States.
Electronic Form I-9 Reminders
Employers utilizing electronic Form I-9s should ensure that these interim updates are recorded correctly by the software, both on the Form 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.
For More Information
For questions or further information on Form I-9, E-Verify, or any immigration compliance matter, please contact the author or your Polsinelli attorney.