On November 20, 2014, Secretary of Homeland Security Jeh Johnson announced his decision to designate Liberia, Guinea, and Sierra Leone for Temporary Protected Status (TPS) for 18 months due to the outbreak of the Ebola virus in West Africa. This allows eligible nationals from Liberia, Guinea, and Sierra Leone currently residing in the United States to register for TPS effective November 21, 2014. The protection will be in effect for 18 months, through May 21, 2016. This means that any eligible nationals from these countries who qualify for TPS may obtain an employment authorization document (EAD) to work legally in the United States. The 180-day TPS registration period began November 21, 2014 and runs through May 20, 2015. U.S. Citizenship and Immigration Services (USCIS) will generally take up to 90 days to process and issue employment authorization. While individuals from these countries will not be removed during the processing period, they may not work legally until the actual work permit is issued.
According to the USCIS notice, to be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been "continuously residing" in the United States since November 20, 2014 and "continuously physically present in" the United States since November 21, 2014. Applicants will be subject to security checks and individuals with certain criminal records or who pose a threat to national security are not eligible for TPS. The eligibility requirements are fully described in the Federal Register notices and on the USCIS TPS Web page.
If an employee or new hire who is a TPS beneficiary from any one of the designated countries 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). 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 nationals from previously designated TPS countries as well as Liberia, Guinea, and Sierra Leone, please refer to our previous alert on TPS for employers. The technical guidance is transferable for the newly designated countries.
Understanding how to complete, update and maintain the Form I-9 is at the core of immigration compliance. Filling out the form correctly can be a complex process and could be complicated with employees that come forth with new identities based on obtaining legal work authorization. In situations where an employee comes forth with a valid EAD and new identity after working under a false identity, employers must:
- Complete a new Form I-9,
- Write the original hire date in Section 2,
- Attach the new Form I-9 to the previously completed Form I-9, and
- Include an explanation describing the change in identity as part of the Form I-9 record.
There are other legal concerns employers should be cognizant of in this scenario. For example, in cases where an employee has used a false identify to obtain employment but is now work authorized, while the law itself does not require termination of employment, company policy and historical practices may impact the company decision. In addition, E-Verify employers have specific protocols they need to follow to remain compliant. Indeed, there are many facets and potential concerns, contractual obligations, and/ or company policies (e.g honesty policy) that employers should discuss with competent immigration and labor & employment counsel prior to taking any action.
For More Information
Please contact the author or your Polsinelli attorney with any questions you may have on TPS, Form I-9 compliance or ongoing immigration concerns that may affect your business.