Justice Department Warns Employers Not to Discriminate Against Workers in TPS Status

On February 2, 2015, the Justice Department announced the launch of an educational video reminding employers that Salvadorans with Temporary Protected Status (TPS) may continue working beyond the March 9, 2015, expiration date of their employment authorization documents (EAD). The Justice Department also cautions employers that requesting additional work-authorization documents from these workers may violate anti-discrimination law.

Released by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), the video explains that the Department of Homeland Security (DHS) automatically extended the validity of EADs for Salvadorans with TPS for an additional six months.  Requesting additional work-authorization documents from these employees may violate the anti-discrimination provision of the Immigration and Nationality Act. This provision prohibits employers from making additional and unauthorized documentary demands because of an employee’s citizenship status, immigration status or national origin when verifying or re-verifying an employee’s employment eligibility.  The newly released video may be viewed at https://www.youtube.com/watch?v=9B3RKCX6dkM.

TPS is a temporary immigration benefit that allows qualified individuals from designated countries who are in the United States to stay and work for a limited period of time. A foreign country is designated for TPS due to conditions in the country that temporarily prevent the country’s nationals from returning safely, such as on-going armed conflict, environmental disasters or other extraordinary and temporary conditions in the designated country. Individuals with TPS can obtain employment authorization documents to work legally in the United States. DHS has the authority to automatically extend EADs for individuals with TPS from certain countries, which renders such EADs valid beyond the expiration date written on their face. This is one of the few situations in which employers are allowed to accept expired documents for I-9 purposes. In this instance, DHS has automatically extended EADs for individuals with TPS from El Salvador until Sept. 9, 2015.

So how is an employer supposed to handle I-9 verification for such workers?  If a new employee presents an EAD obtained pursuant to TPS that is expired on its face but has been automatically extended, in Section 2 of the Form I-9 the employer should (1) record the document title, (2) record the document number, and (3) record the date the EAD has been automatically extended to as the expiration date.  In Section 1, employees should (1) check “An alien authorized to work,” (2) write their alien number in the first space (alien numbers are printed on EADs, but also can be found on notices from USCIS), and (3) write the date the EAD expires, or the automatic extension date if the EAD has been auto-extended,  in the second space.

When an existing employee’s EAD received pursuant to TPS expires, but has been automatically extended, an employer needs to take the following steps in Section 2 only, not in Section 3: (1) draw a line through the expiration date for the EAD written in Section 2, (2) write the new date to which that EAD has been automatically extended above the previous date now crossed out, (3) write “TPS Ext” in the margin of Section 2, and (4) initial and date the correction in the margin of Section 2. The employer must also have the employee do the following in Section 1: (1) draw a line through the expiration date of employment authorization previously indicated by the employee in Section 1, (2) write in the date that the automatic extension of employment authorization ends, and (3) initial and date the correction in the margin. Once the automatic extension has ended, the employer will utilize Section 3 and re-verify using the new EAD.

For more information, please contact one of our immigration attorneys. Our firm provides a variety of services related to I-9 compliance, including voluntary audits and training, as well as representation in connection with enforcement audits by ICE. We have represented and advised employers in multiple industries with relation to I-9 compliance, including hospitality, restaurant, landscaping, production, retail, staffing, manufacturing, higher education, service provider, and financial industries.

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