July 25, 2023

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The Office of the Citizenship and Immigration Services Ombudsman recently issued its statutorily required annual report to Congress. The report pertains to the U.S. Citizenship and Immigration Services (USCIS), highlighting productivity and other requested information. It also revealed how existing employment authorization policies for Temporary Protected Status (TPS) beneficiaries present numerous challenges, affecting individuals and their employers.

Federal law prohibits employers from hiring unauthorized individuals to work in the United States. Consequently, all employers must ensure prospective employees complete the employment eligibility verification (Form I-9) process. This process involves presenting appropriate documentation to establish their identity and employment eligibility. Sometimes, an employee’s authorization documents expire while working. Such cases require employers to verify their work authorization again. This reverification must include documentation proving a continued ability to work in the United States.

Federal regulations require TPS applicants and beneficiaries to acquire Employment Authorization Documents (EADs). They may get these from the USCIS for completing their Form I-9s. However, the USCIS has suffered significant delays for initial and renewal applicants. These delays can prevent TPS beneficiaries from obtaining or sustaining employment. They also result in disruptions for employers relying on the skills and contributions of these beneficiaries.

These challenges have led to the USCIS implementing various measures to assist TPS beneficiaries in verifying their work authorization. One measure involves permitting beneficiaries to present expired or expiring EADs. The USCIS can utilize this measure because it routinely extends the validity of EADs, eliminating the need for an updated EAD.

All TPS applicants and beneficiaries may benefit from an automatic extension by filing a renewal in the same category on time. In addition, federal register notices extending TPS designation include language automatically extending EADs. Sometimes, TPS holders may present the notice in addition to their expired or expiring EAD.

According to the CIS ombudsman, these measures have confused some TPS holders and employers. The ombudsman explained, “[s]ome employers, no matter the size or industry, have failed to accept the valid documentation and demand additional documents. Many employers may not be aware of what types of documentation are acceptable and may be reluctant to accept expired EADs and a copy of a federal register notice.”

The CIS ombudsman’s report highlighted another issue concerning a review by the U.S. Government Accountability Office. The Office reviewed how the USCIS instructed employers on verifying extended EADs for TPS holders. As a result, the Office revealed inconsistencies in the instructions.

The ombudsman’s report emphasized that it does not expect employers to display expertise on the topic. Furthermore, the report stated, “[s]taying current on acceptable documents can be challenging for human resource professionals, much fewer generalists such as office managers or supervisors who handle such duties for smaller employers.”

The USCIS has since taken steps to provide consistent guidance. However, this has not solved many TPS holders’ and employers’ confusion regarding completing Form I-9 with automatically extended EADs.

One way employers can help ensure uniform and accurate completion of each Form I-9 is to incorporate an electronic I-9 management tool into the onboarding process. This tool can provide HR personnel with step-by-step guidance on verifying employment authorizations and reminders when to take action to maintain compliance.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.

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