Extending Validity of TPS Documentation for Nepalis, Haitians & Central Americans
प्रकाशित मिति : मंसिर २२, २०७७ सोमबार
The Department of Homeland Security (DHS) today announced a Federal Register notice extending Temporary Protected Status (TPS) and the validity of TPS-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.
The notice automatically extends through Oct. 4, 2021, the validity of Employment Authorization Documents (EADs); Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record (collectively, TPS-related documentation) for beneficiaries under the TPS designations for these six countries. The notice also sets forth procedures necessary for nationals of these six countries (or aliens having no nationality who last habitually resided in these countries) to apply for EADs if they wish.
This notice ensures continued compliance with the orders issued by the federal district courts in the Ramos v. Nielsen, Bhattarai v. Nielsen, and Saget v. Trump lawsuits that require DHS to maintain the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan, as well as the TPS and TPS-related documentation for eligible affected beneficiaries.
The TPS designations for El Salvador, Nicaragua, and Sudan will remain in effect, as required by the Ramos district court order, so long as the preliminary injunction remains in effect. Although a panel of the U.S. Court of Appeals for the Ninth Circuit vacated the injunction on Sept. 14, 2020, no directive has been issued to the district court, thus the injunction remains in effect.
The TPS designation for Haiti will remain in effect, as required by the preliminary injunction orders in both Ramos and Saget, so long as either of those preliminary injunctions remains in effect.
The TPS designations for Honduras and Nepal will remain in effect so long as the Bhattarai order staying proceedings and approving the parties’ stipulated agreements continues in effect.
Automatic Extension of EADs
Through the Federal Register notice, DHS automatically extends the validity of EADs listed in Table 1 below issued to beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal. Such aliens may show their EAD to employers to demonstrate they have employment authorization and may wish to also show employers this Federal Register notice to explain that their TPS-Related Documentation has been automatically extended through October 4, 2021.
The Notice explains how TPS beneficiaries, their employers, and benefit-granting agencies may determine which EADs are automatically extended and how this affects the Form I-9, Employment Eligibility Verification, E-Verify, and USCIS Systematic Alien Verification for Entitlements (SAVE) processes. Additionally, a beneficiary under the TPS designation for any of these countries who has applied for a new EAD but who has not yet received his or her new EAD is covered by this automatic extension
Automatic Extension of Forms I-94 and Forms I-797
Also through the Federal Register notice, DHS automatically extends the validity periods of the Forms I-94 and Forms I-797 listed in Table 2 below previously issued to beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal.
These extensions apply only if the TPS beneficiary properly filed for re-registration during either the most recent DHS-announced registration period for their country, or any applicable previous DHS-announced re-registration periods for the alien’s country,3 or has a re-registration application that remains pending.
The notice does not extend the validity periods of Forms I-94 or Forms I-797 for any TPS beneficiary who failed to file for TPS re-registration during one of the applicable previous DHS-announced re-registration periods, or for whom a re-registration request has been finally denied. In addition, the extensions do not apply for any beneficiary from whom TPS has been withdrawn.
Current beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan do not need to pay a fee or file any application, including Application for Employment Authorization (Form I-765), to maintain their TPS benefits through October 4, 2021, provided that they have properly re-registered for TPS during either the most recent DHS-announced registration period for their country, or any applicable previous re-registration period.
TPS beneficiaries who have failed to re-register properly for TPS during any of these re-registration periods may still file an Application for Temporary Protected Status (Form I-821), but must demonstrate “good cause” for failing to re-register on time, as required by law. See INA section 244(c)(3)(C) (TPS beneficiary’s failure to register without good cause in form and manner specified by DHS is ground for TPS withdrawal); 8 CFR 244.17(b) and Form I-821 instructions.
Any currently eligible beneficiary who does not presently have a pending EAD application under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, or Sudan may file Form I-765 with appropriate fee.
Possible Future Actions
In order to comply with statutory requirements for TPS while the district courts’ orders or any superseding court order concerning the beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan are pending, DHS anticipates requiring these beneficiaries to re-register and will announce the reregistration procedures in a future Federal Register notice.
DHS has the authority to conduct TPS re-registration in accordance with section 244(c)(3)(C) of the INA and 8 CFR 244.17. Through the re-registration process, which is generally conducted every 12 to 18 months while a country is designated for TPS, USCIS determines whether each TPS beneficiary is continuing to maintain individual eligibility for TPS, including but not limited to, the requirements related to disqualifying criminal or security issues. See id.; INA, section 244(c)(2); 8 C.F.R. §§ 244.2, 244.3, and 244.4 (describing individual TPS eligibility requirements, including mandatory criminal and security bars).
The Government has appealed both the Ramos and Saget preliminary injunctions. A 3-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled for the Government and vacated the Ramos preliminary injunction on September 14, 2020. However, the preliminary injunction remains in effect because the appellate court has not issued its directive (i.e., the mandate) to the district court to implement the panel’s decision. Should the Government ultimately prevail in its challenge to the Ramos preliminary injunction, the Secretary’s determination to terminate TPS for Nicaragua, Sudan, Honduras, and Nepal will take effect no earlier than 120 days from the issuance of any appellate mandate to the district court.
The Secretary’s determination to terminate TPS for El Salvador will take effect no earlier than 365 days from the issuance of any appellate mandate to the Ramos district court. DHS provides this additional time for El Salvador TPS beneficiaries in part because there are almost 100,000 more such beneficiaries than in the combined TPS beneficiary populations of all the other five countries covered by this notice.5 The additional period of 245 days beyond 120 days permits an orderly transition for beneficiaries of TPS from El Salvador as they return to their homeland. If the Government prevails in its appeals, DHS will also continue to monitor the circumstances of the affected beneficiaries under the other five TPS country designations covered by this notice.
TPS for beneficiaries under Haiti’s designation may continue pursuant to the Saget preliminary injunction. However, should the Government prevail in its challenges to both the Ramos preliminary injunction and the Saget preliminary injunction, the Secretary’s determination to terminate TPS for Haiti will take effect no earlier than 120 days from the issuance of the later of the two appellate mandates to the District Court. To the extent that a Federal Register notice has automatically extended TPS-related documentation beyond 120 days from the issuance of any appellate mandate to the District Court, DHS reserves the right to issue a subsequent Federal Register notice announcing an expiration date for the documentation that corresponds to the last day of the 120-day period.
Should the Government move to vacate the Bhattarai order to stay proceedings in light of an appellate decision affirming the preliminary injunction in Ramos that suggests a basis on which to distinguish the determinations to terminate the TPS designations for Honduras and Nepal from the TPS terminations at issue in Ramos, TPS will remain in effect for Honduras and Nepal for at least 180 days following an order of the District Court vacating the stay in proceedings.
What documentation may I present to my employer for Form I-9 if I am already employed but my current TPS-related EAD is set to expire?
Even though your EAD has been automatically extended, your employer may need to re-inspect your automatically extended EAD to check the Card Expires date and Category code if your employer did not keep a copy of your EAD when you initially presented it. In this situation, your employer should update the EAD expiration date in Section 2 of Form I-9. See the section, “What corrections should my current employer make to Form I-9 if my employment authorization has been automatically extended?” of this Federal Register notice for further information.
You may show this Federal Register notice to your employer to explain what to do for Form I-9 and to show that your EAD has been automatically extended through October 4, 2021 as indicated in the above chart. The last day of the automatic extension for your EAD is October 4, 2021. Before you start work on October 5, 2021, your employer is required by law to reverify your employment authorization in Section 3 of Form I-9. At that time, you must present any document from List A or any document from List C on Form I-9, Lists of Acceptable Documents, or an acceptable List A or List C receipt described in the Form I-9 instructions to reverify employment authorization.
If your original Form I–9 was a previous version, your employer must complete Section 3 of the current version of Form I-9, and attach it to your previously completed Form I-9. Your employer can check the I-9 Central web page at www.uscis.gov/I9Central for the most current version of Form I-9. Your employer may not specify which List A or List C document you must present and cannot reject an acceptable receipt.
Can I obtain a new EAD?
Yes, if you remain eligible for TPS and apply for a new EAD, you can obtain a new EAD. However, you do not need to apply for a new EAD in order to benefit from this automatic extension. If you are a beneficiary under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, or Nepal and want to obtain a new EAD valid through October 4, 2021, then you must file Form I-765 and pay the associated fee.
If you do not want a new EAD, you do not have to file Form I-765 or pay the Form I-765 fee. If you do not want to request a new EAD now, you may file Form I-765 at a later date and pay the fee, provided that you still have TPS or a pending TPS application. You may file the application for a new EAD either before or after your current EAD has expired. If you are unable to pay the application fee and/or biometric services fee, you may complete a Request for Fee Waiver (Form I-912). For more information on the application forms and fees for TPS, please visit the USCIS TPS web page at www.uscis.gov/tps.
If you have a Form I-821 and/or Form I-765 application that is still pending for beneficiaries under the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, or Sudan, then you should not file either application again. If your pending Form I-821 is approved, you will be issued Forms I-797 and I-94 through October 4, 2021. Similarly, if you have a pending TPS-related Form I-765 that is approved, your new EAD will be valid through October 4, 2021. Your TPS itself continues as long as the preliminary injunction impacting your country’s TPS designation remains in effect and in accordance with any relevant future Federal Register notices that DHS may issue respecting your country’s TPS designation, or until your TPS is finally withdrawn for individual ineligibility under INA, section 244(c), or the applicable TPS designation is terminated as discussed in the “Possible Future Action” section of this Federal Register notice.
Can my employer require that I provide any other documentation to prove my status, such as proof of my citizenship from El Salvador, Haiti, Honduras, Nepal, Nicaragua, or Sudan?
No. When completing Form I-9, including reverifying employment authorization, employers must accept any documentation that appears on the Form I-9 Lists of Acceptable Documents that reasonably appears to be genuine and that relates to you, or an acceptable List A, List B, or List C receipt. Employers need not reverify List B identity documents. In addition, employers may not request documentation that does not appear on the Lists of Acceptable Documents.
Therefore, employers may not request proof of citizenship or proof of re-registration for TPS when completing Form I-9 for new hires or reverifying the employment authorization of current employees. If presented with an EAD that has been automatically extended, employers should accept such a document as a valid List A document, so long as the EAD reasonably appears to be genuine and relates to the employee. Refer to the “Note to Employees” section of this Federal Register notice for important information about your rights if your employer rejects lawful documentation, requires additional documentation, or otherwise discriminates against you based on your citizenship or immigration status, or your national origin.
What updates should my current employer make to Form I-9 if my employment authorization has been automatically extended?
If you presented a TPS-related EAD that was valid when you first started your job and your EAD has now been automatically extended, your employer may need to reinspect your current EAD if they do not have a copy of the EAD on file. See the chart in the question above “When hired, what documentation may I show to my employer as evidence of employment authorization and identity when completing Form I-9?” to determine if your EAD has been automatically extended. If your employer determines that your EAD has been automatically extended, your employer should update Section 2 of your previously completed Form I-9 as follows:
a. Write EAD EXT and October 4, 2021, as the last day of the automatic extension in the Additional Information field; and
b. Initial and date the correction.
Note: This is not considered a reverification. Employers do not need to complete Section 3 until either this notice’s automatic extension of EADs has ended or the employee presents a new document to show continued employment authorization, whichever is sooner. By October 5, 2021, when the employee’s automatically extended EAD has expired, employers are required by law to reverify the employee’s employment authorization in Section 3. If your original Form I–9 was a previous version, your employer must complete Section 3 of the current version of Form I-9 and attach it to your previously completed Form I-9. Your employer can check the I-9 Central web page at www.uscis.gov/I-9Central for the most current version of Form I-9.
If I am an employer enrolled in E-Verify, how do I verify a new employee whose EAD has been automatically extended?
Employers may create a case in E-Verify for a new employee by providing the employee’s A-Number or USCIS number from Form I-9 in the Document Number field in E-Verify.
If I am an employer enrolled in E-Verify, what do I do when I receive a “Work Authorization Documents Expiration” alert for an automatically extended EAD?
E-Verify has automated the verification process for TPS-related EADs that are automatically extended. If you have employees who provided a TPS-related EAD when they first started working for you, you will receive a “Work Authorization Documents Expiring” case alert when the auto-extension period for this EAD is about to expire. Before this employee starts work on October 5, 2021 as appropriate, you must reverify his or her employment authorization in Section 3 of Form I-9. Employers should not use E-Verify for reverification.