In another welcomed measure that clarifies the work eligibility of a class of valued employees, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) announced the launch of an educational video reminding employers that nationals of El Salvador with Temporary Protected Status (TPS) may continue working beyond the March 9, 2012 expiration date on their Employment Authorization Documents (EADs). The video is part of an ongoing educational campaign aimed at employers to ensure that the rights of workers are not violated in the Form I-9 compliance process.

The Department of Homeland Security has automatically extended the EADs for nationals of El Salvador with TPS until September 9, 2012. It is critical that employers know that they may continue to employ workers with TPS from El Salvador until September 9, 2012. OSC anticipates that its guidance will assist employers in avoiding claims of discrimination in the employment eligibility verification process by reminding them that, despite the rule that Employment Eligibility Verification Form I-9 documents must be unexpired, in this case it is permissible to continue to employ a worker with a TPS extension. In the past, employers have not had the benefit of such guidance and often terminated or refused to hire workers that indeed were eligible to work but could not present valid work authorization.

What is TPS?

TPS is a temporary immigration benefit allowing qualified individuals from designated countries, including El Salvador, to remain in the United States for a limited time period due to extenuating circumstances such as armed conflict, environmental disaster, or other extraordinary and temporary conditions in the designated country. Individuals who qualify for TPS may obtain employment authorization documents to work legally in the United States. There are nationals of other countries in addition to El Salvador who are currently eligible to benefit from TPS.

May I hire or continue to employ someone with an expired EAD?

Yes, in limited circumstances such as what is described below. 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 issues a Federal Register notice sometimes 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 (www.uscis.gov) and the Federal Register notice will describe this EAD auto-extension and will note the date when the auto-extension ends. The auto-extension is typically for six (6) months, but the time period can vary.

If presented for Form I-9 completion 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, to be acceptable, the card must reasonably appear on its face to be genuine and to relate to the employee presenting it. If the person is not entitled to the auto-extension of the EAD then they must be terminated from employment if they cannot present a valid work authorization on or before their current work authorization expires.

How do I know that the employee is a beneficiary of TPS?

There are a few clues that an employer should look for to determine if an employee is a TPS authorized worker. First look at the Category-if the person’s work authorization is granted based on TPS, the notation “A-12” or “C-19” appears on the face of the EAD under “Category.” Then look at the expiration date. The expiration date of the most recent TPS extension period will appear on the face of the Card. This date will appear in the Federal Register notice announcing the auto-extension of the EADs and may also be found at www.uscis.gov/tps. For Salvadorians, the employee’s EAD card would have expired on March 9, 2012.

How do I complete a Form I-9 ?

When using an automatically extended EAD to fill out a Form I-9 for a new hire prior to September 9, 2012, the Form I-9 should be completed as follows:

For Section 1, the employee should: 

• Check “An alien authorized to work”;
• Write the alien number (A-number) in the first space (the employee’s EAD or other document from DHS will have the A-number printed on it); and
• Write the automatic extension date in the second space.

For Section 2, the employer should: 

• Record the document title; 
• Record the document number; and 
• Record the automatically extended EAD expiration date.

After September 9, 2012, employers must re-verify the employee’s employment authorization in Section 3 of the Form I-9. The employee may choose to present an unexpired EAD with an updated expiration date, or any other document from List A or C of the Form I-9 evidencing that he or she continues to be authorized to work in the United States. Employers should check for ongoing TPS extensions.

How do I update a Form I-9?

In an interesting piece of guidance from the USCIS, the agency requests auto-extensions to be recorded in Section 2 rather than Section 3 of the Form I-9. Accordingly, if an existing employee presented an EAD that was valid when he/she first started the job, but the EAD is expired and has been automatically extended, the previously completed Form I-9 should be updated as follows:

For Section 1, the employee should: 

• Draw a line through the expiration date in the second space; 
• Write the new work authorization expiration date (which for Salvadorians at this time would be September 9, 2012) above the previous date;
• Write “EAD Ext.” in the margin of Section 1; and 
• Initial and date the correction in the margin of Section 1.

For Section 2, the employer should:

• Draw a line through the expiration date written in Section 2;
• Write the new work authorization expiration date (which for Salvadorians at this time would be September 9, 2012) above the previous date;
• Write “EAD Ext.” in the margin of Section 2; and 
• Initial and date the correction in the margin of Section 2.

What are the fines and penalties if we violate the law?

Remember immigration compliance should be handled carefully by trained individuals regardless of the size of the company. A balance between ensuring workers are authorized to work and ensuring workers’ rights are not violated is critical. Employers must be careful to ensure they do not discriminate against individu¬als on the basis of national origin, citizenship, or immigration status. Employers who violate the law may be subject to: 

• civil fines; 
• criminal penalties (when there is a pattern or practice of violations); 
• debarment from government contracts; 
• a court order requiring the payment of back pay to the individual discriminated against; 
• a court order requiring the employer to hire the individual discriminated against.

Employers should also ensure they do not hire, recruit for a fee, or refer for a fee aliens whom they know to be unauthorized to work in the United States. Employers who violate the law may be subject to Civil Fines and criminal penalties for form I-9 violations ranging from $375 to $16,000.

The newly released video may be viewed at http://www.justice.gov/crt/pressroom/videos.php?group=3.

In addition, OSC offers live webinars on preventing workplace discrimination. To participate in a webinar, employers may register online at www.justice.gov/crt/about/osc/webinars.php.

The USCIS provides an excellent summary of TPS eligibility and information on the program on their website.

For more general information about completing or updating the Form I-9, consult the Handbook for Employers: Instructions for Completing Form I-9 (M-274).