Why Employees With TPS Might Legally Work Past Expiration Date on Work Permit

If your business employs non-citizens whose authorization to work is based on Temporary Protected Status (TPS), you should learn to deal with what happens when their Employment Authorization Documents (EADs) will expire.

If your business employs non-citizens whose authorization to work is based on what's known as Temporary Protected Status (TPS), you face a challenge. At some point, your TPS beneficiary workers' Employment Authorization Documents (EADs) will expire.

Yet the expiration date on the card itself can be misleading. In certain circumstances, a worker's TPS status may be extended without him or her receiving a new EAD. This article will explain why, and guide you in checking on your worker's possible ongoing TPS status and right to work.

The Work Permit Is Tied to the Worker's TPS Status

When certain emergencies arise in another country, the U.S. Department of Homeland Security (DHS) can designate that country's citizens, if they are already present in the United States, as eligible for TPS. TPS is a temporary designation that allows its beneficiaries to live and work in the U.S. for the duration of the emergency without fear of being placed into removal proceedings for overstaying a visa. For more information on TPS status, visit Temporary Protected Status (TPS): Who Is Eligible?

Depending on whether or not conditions in the country designated as eligible for TPS have improved since the original designation, the U.S. Secretary of Homeland Security can either remove the TPS designation or extend it for citizens already living in the U.S. as TPS beneficiaries. If conditions are still unsafe in the country, then beneficiaries of the TPS may receive an extension of six, 12, or 18 months. The citizens of some countries with TPS status have received multiple such extensions.

TPS Status and the Work Permit May Be Automatically Extended

Notice of an extension of TPS designation for a country is provided in the Federal Register, which is basically a daily newspaper of the federal government. When the Register announces an extension of a TPS-designated country, it will also explain all the details required to renew TPS, and how it will impact an employee's right to continue working.

You can access the register at www.federalregister.gov, and search updated TPS information about the designated country, or also check the Temporary Protected Status page of the United States Citizenship and Immigration Services (USCIS) website for any updated deadlines and dates of possible re-extension.

Make sure to maintain a system of tracking expiration dates for your employee's work authorization. There are a variety of software programs that can make the process more efficient. Find a process that works for you and make sure to follow the guidelines set forth by USCIS Handbook for Employers.

If TPS Is Automatically Extended, the Work Permit Continues to Be Valid

When TPS is extended for a country, a new renewal period opens to allow TPS beneficiaries to apply to renew TPS and their work permit. (Of course, each beneficiary must still meet all the basic TPS eligibility criteria).

DHS understands that many TPS beneficiaries cannot renew their TPS in time to receive a new EAD before their current EAD expires. Because of the potential of having an expired work permit, DHS will often automatically extend the current EAD for a set period of time (usually six months) to allow beneficiaries to receive a new EAD.

If TPS is automatically extended, the expired EAD card and a copy of the Federal Register notice is all that an employee needs as proof to legally continue working until the extension period ends. If an employee has dealt with TPS for a while, it is possible that the employee will approach you with the Register notice and information about any changes.

Because the TPS renewal process can be complex, it is likely that your employee will not come with information, but will ask you for advice on what options are available. Remember, the Register notice contains information explaining how you can document the new information on the employee's I-9 form throughout the TPS renewal process.

If your employee's TPS-designated country is found to no longer meet the requirements, once the EAD expires, the employee will no longer have authorization to work under TPS. Notice of any changes to TPS will always be provided to the employee, and can be accessed by you on the Register. The Register will walk you through what steps are required of you as an employer in this situation.

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