Temporary Protected Status (TPS) is an immigration benefit granted by the Department of Homeland Security (DHS) to eligible individuals in the United States who are nationals of a country (or persons without nationality who last habitually resided in such country) that has been designated for TPS. A country may be designated for TPS on the basis of on-going armed conflict, environmental disaster or other extraordinary and temporary conditions that prevent such nationals from safely returning to their homelands. TPS is granted to eligible individuals from the designated countries for time-limited periods, depending on the length of the country designation or an extension of that designation.
The protection is granted for six to 18 months at a time, if conditions in a given country have been determined not to have improved enough. The Trump administration has taken a harder line on TPS than previous administrations, which tended to keep renewing it; the program is supposed to be temporary and was never intended to bestow long-term residency. Critics of the program argue that it has been incorrectly extended for years, and the U.S. Department of Homeland Security (DHS) has determined that conditions in the four countries named in the lawsuit have improved to the point that TPS for those countries’ nationals is no longer necessary.
Individuals who have been granted TPS may work in the United States and may apply to U.S. Citizenship and Immigration Services (USCIS) to receive an Employment Authorization Document (EAD). An EAD is a plastic, credit card-sized document that shows proof of the individual’s authorization to work in the United States and contains a photograph of the individual.
When securing employment in the United States, TPS beneficiaries, like any other individual whom an employer hires, will be requested by their employers to attest to their authorization to work in the United States using the USCIS form, Employment Eligibility Verification, Form I-9. To complete the Form I-9 process, they also must present to their employers a document or combination of documents of the employees’ choosing evidencing their identity and employment authorization from the list of acceptable documents.
The EAD issued to TPS beneficiaries by USCIS is one of the documents listed as acceptable for the Form I-9. This document establishes both identity and employment authorization under “List A” of the Form I-9. The expiration date on the card is usually the end of the TPS period for which the bearer last registered. When DHS extends a specific TPS country designation, it sometimes issues a Federal Register notice containing a temporary blanket automatic extension of expiring EADs for TPS beneficiaries from that country to allow time for USCIS to issue new EADs with updated validity dates. The USCIS Web site and the Federal Register notice will describe this EAD auto-extension and will note the date when the auto-extension ends.
Although an employer cannot specify which documents an employee can present in connection with the I-9 Employment Eligibility Verification process, TPS beneficiaries with automatic EAD extensions may present an expired EAD bearing the C19 eligibility code along with a Form I-797C Notice of Action indicating the eligibility category code A12 or C19. The codes need not be the same.
If presented for completion of Form I-9 by your employee, you must accept a TPS-related EAD that is expired on its face if it nevertheless remains unexpired based on an auto-extension of the EAD by DHS as announced in a notice published in the Federal Register. Also, the card must reasonably appear on its face to be genuine and to relate to the employee presenting it to be acceptable. The following information will appear on the card:
- The notation “A-12” or “C-19” appears on the face of the EAD under “Category.”
- The expiration date of the most recent TPS extension period on the face of the card. This date will appear in the Federal Register notice announcing the auto-extension of EADs and may also be found at www.uscis.gov/tps.
Aliens in certain employment eligibility categories who file an EAD renewal application may receive automatic extensions of their expiring EAD for up to 180 days. The extension begins on the date the EAD expires and continues for up to 180 days unless the renewal application is denied. An automatic EAD extension depends on these requirements:
- The employee must have timely filed an application to renew their EAD before it expires (except certain employees granted Temporary Protected Status (TPS)), and the application remains pending;
- The eligibility category on the face of the EAD is the same eligibility category code on the Form I-797C Notice of Action, the employee received from USCIS indicating USCIS’s receipt of their renewal application (except employees with TPS who may have a C19/A12 combination); and
- The eligibility category is listed on uscis.gov as eligible for EAD automatic extensions. As of the date of publication of this M-274, Handbook for Employers, eligibility categories codes for a 180-day automatic extension are A03, A05, A07, A08, A10, C08, C09, C10, C16, C20, C22, C24, C31 and A12 or C19.
The employee’s expired EAD in combination with the Form I-797C Notice of Action showing that the EAD renewal application was timely filed and showing the same qualifying eligibility category as that on the expired EAD is an acceptable document for Form I-9. This document combination is considered an unexpired Employment Authorization Document (Form I-766) under List A.
The receipt number appears on the face of the I-797C Notice of Action in the “Receipt Number” field.
The filing date is the date USCIS received the application and appears in the “Received Date” field. This date should be on or before the expiration date on the face of the Employment Authorization Document.
The category code may appear on the face of the I-797C Notice of Action in the “Class Requested” field. If you do not see this field, see Sample 2 below.
The receipt number appears on the face of the I-797C Notice of Action in the “Receipt Number” field.
The filing date is the date USCIS received the application and appears in the “Received Date” field. This date should be on or before the expiration date on the face of the Employment Authorization Document.
The category code may appear on the face of the I-797C Notice of Action in the “Eligible Category” field. If you do not see this field, see Sample 1 above.
The M-274 Handbook for Employers can be referred to learn how to complete the Form I-9 for those employees with automatic EAD extensions. It instructs that:
For a current employee, Section 2 of Form I-9 should be updated with the new expiration date as follows:
- Draw a line through the old expiration date and write the new expiration date in the margin of Section 2;
- Write EAD EXT in Section 2;
- Initial and date the correction.”
The new expiration date to enter is the date 180 days from the date the card expires, which is the date on the face of the expired EAD. Employees whose employment authorization was automatically extended along with their EAD (such as adjustment of status applicants, but not asylees who are employment authorized incident to status) may cross out the “employment authorized until” date in Section 1, write the date that is 180 days from the date their current EAD expires, and initial and date the change.
New employees may present the expired EAD and Form I-797C Notice of Action indicating USCIS’s receipt of the employee’s timely filed renewal application. When completing Section 1, the employee should enter the date that is 180 days from the “card expires” date of their expired EAD in the “employment authorized until mm/dd/yyyy” field.
When completing Section 2, the employer should enter into the Expiration Date field the date the automatic extension period expires, not the expiration date on the face of the expired EAD. The automatic extension expiration date is the date 180 days from the “card expires” date on the EAD. Note that this expiration date may be cut short if the employee’s renewal application is denied before the 180-day period expires. The employer should enter the receipt number from the I-797C Notice of Action as the document number on Form I-9.
Reverification
Reverification is required when the employee’s automatic extension ends, no later than 180-days after the expiration date of the Employment Authorization Document (Form I-766). Reverification can also be done before the end of the 180-day extended time period, upon receipt of any document that shows current employment authorization, such as any document from List A or List C.
Your employer will be required to reverify your employment authorization on Section 3 of Form I-9 at the end of the automatic EAD extension period. At that time, you must present your employer with either your new TPS-related EAD containing an updated, valid expiration date, or any other acceptable document from List A or C evidencing that you continue to be authorized for employment in the United States.
