The Supreme Court is currently deciding whether the president’s executive action granting Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) is constitutional. If the Supreme Court finds in favor of DAPA, it would provide a three-year reprieve from deportation for millions of foreign nationals, which would also allow those foreign nationals to obtain an employment authorization document (EAD). In the meantime, employers should know that there are other programs available for foreign nationals that offer similar benefits and may serve as great opportunities for employing foreign nationals authorized to work.
Specifically, temporary protected status (TPS) is a temporary immigration status granted to individuals in the United States who are from designated countries undergoing armed conflict, environmental disasters or other extraordinary and temporary conditions. Although TPS has been in existence since 1990, it has been authorized in only 22 countries, and the majority of these countries have been authorized in the past three years. Similarly to DAPA, individuals granted TPS are eligible to apply for work authorization and permission to travel abroad for short periods of time. Overall, as TPS has been extended to more countries and DAPA remains undecided, employers should be aware of their ability to employ TPS individuals who have an EAD.
As TPS has become much more prevalent in the past three years given the natural disasters, health emergencies and political turmoil around the world, employers should be aware that several countries are now TPS designated. This has greatly increased the pool of foreign nationals who are TPS work authorized. In 1999, only Nicaragua and Honduras were designated for TPS. However, since then, 20 additional countries have been authorized. Specifically, the following 13 countries have been designated for TPS since these dates: Nicaragua, January 1999; Honduras, January 1999; El Salvador, March 2001; Haiti, July 2011; Somalia, September 2012; Sudan, May 2013; Guinea, November 2014; Liberia, November 2014; Sierra Leone, November 2014; Syria, January 2015; Yemen, September 2015; Nepal, June 2015; and South Sudan, January 2016.
Further, although TPS is technically a temporary status, in recent years, the Department of Homeland Security has issued automatic extensions of employment authorization for TPS recipients from certain countries. More specifically, these automatic extensions are successive, which is why such countries as Nicaragua and Honduras have been continuously authorized since 1999. The automatic extension typically extends the authorization for six months, but the time period can vary. Additionally, it is rare for a country to have its TPS designation terminated. Since TPS originated, 22 countries have been designated and only 9 have been terminated. Notably, the last TPS termination was Burundi in October 2007.
For purposes of employer Form I-9 compliance, it is also important to note that employers must accept a TPS EAD that is expired on its face if in fact the government has extended EADs for that TPS group. As such, if the EAD is expired, or is approaching expiration, employers should reference the United States Citizenship and Immigration Services website or the Federal Register notice regarding the appropriate country to determine whether the government has granted an automatic extension; if so, then the person with that EAD remains authorized to work.
It should be noted that if a foreign national presents a valid EAD, the employer must accept the valid EAD (unless it does not appear genuine or to relate to the person presenting it). Additionally, when complying with I-9 verification, individuals with TPS may choose to present other acceptable documents for initial Form I-9 verification or reverification purposes. As such, if an employer requests more or different documents than are required by the I-9 process, the employer may violate the anti-discrimination provision of the Immigration and Nationality Act (INA).
Lastly, although TPS does not automatically lead to lawful permanent residence (a green card) in the United States, a TPS grant does not preclude individuals from obtaining other immigration statuses for which they may qualify. In addition, in a recent case, In Matter of Arrabally and Yerrabelly, 25 I&N De. 771 (BIA 2012), the Board of Immigration Appeals described the process by which certain individuals with TPS could adjust their status to lawful permanent residence. Specifically, a person who enters the United States without inspection and is subsequently granted TPS can cure their unlawful entry by departing the United States and then reentering through a mechanism called advanced parole. Doing so means they will not be subjected to the 10-year bar, which is normally triggered by a departure after having been in the United States illegally for longer than one year.
Danny Alicea, Fragomen fellow; Pamela Frederick, law clerk; and Nancy Morowitz, counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com
Published May 4, 2016.
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