TPS STATUS: THE EXCEPTION TO THE FORM I-9 PROCESS
For employers, Temporary Protected Status (TPS) is one of the exceptions to the Form I-9 process that can have dire consequences. Generally, the reverification process contained in Section 3 of the Form I-9 requires employers to obtain copies of new work authorization documents when a foreign national’s temporary work authorization expires. If the employee cannot provide documentation demonstrating current work authorization, then the employee is supposed to be terminated. However, TPS is the exception to this rule. When an extension of TPS status is announced, USCIS typically announces that the EAD’s of individuals enjoying TPS status are automatically extended as well. Therefore, employers are faced with the situation where the documentation provided to complete the Form I-9 has an expiration date that is no longer valid. The only way the employer would know that the EAD is automatically extended is to check on the United States Citizenship and Immigration Services (USCIS) website, or to have competent counsel inform them when announcements regarding TPS are made. The typical scenario that results from employer Form I-9 decisions regarding individuals in TPS status can have severe consequences for employer. Generally, the employer has a system that notifies HR that an employee’s work authorization is about to expire. The HR manager calls the employee so that the employee can provide new work authorization documentation. However, an employee on TPS status whose EAD is automatically renewed will not have additional documentation other than a press release from USCIS announcing the extension. In this situation overzealous employers often terminate the employee. Terminating the employee in this situation is illegal. In addition to Title VII issues, there are anti-discrimination provisions in the Immigration and Nationality Act. The result of terminating an employee in this situation is that the employee may bring a charge to the Department of Justice (DOJ), who takes these types of complaints very seriously. The DOJ will investigate and demand reinstatement, backpay, and possibly a fine. Litigation may ensue resulting in additional costs to the employer. It is best to avoid this type of situation entirely. If you have any concerns about dealing with TPS status and how it relates to the Form I-9 obligations, consult with knowledgeable counsel. Making the wrong decision can and often does result in penalties which can be substantial if the employer employs numerous individuals in TPS status.
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