Visa Lawyer Blog

Temporary Protected Status and Expired Employment Authorization Documents

One must accept a Temporary Protected Status (TPS) beneficiary's expired Employment Authorization Document (EAD) if DHS has automatically extended its validity in a Federal Register notice. Automatically extended EADs are listed on the USCIS web site. EADs issued to TPS beneficiaries will include one of two category codes: “A-12” or “C-19.” You must not require an employee to provide proof that he or she is a national of a country that has been designated for TPS.

When creating a new case in E-Verify for newly hired TPS beneficiaries, select “Employment Authorization Document (Form I-766)” as the document presented and use the date to which the EAD was automatically extended as the expiration date. We recommend that you read the TPS information on the USCIS web site carefully, as the EAD automatic extension is usually shorter than the TPS extension date.

When re-verifying an existing TPS beneficiary’s employment authorization in Section 3 of Form I-9, write down the date to which the EAD was automatically extended as the expiration date. Never use E-Verify to re-verify an existing employee’s employment authorization.

Once the automatic extension of the EAD expires, re-verify the employee’s employment authorization again in Section 3 of either the original Form I-9 or a new Form I-9. The employee may choose to present a new, unexpired EAD, or any other document from List A or C of Form I-9 that shows he or she continues to be authorized to work in the United States. Federal contractors with the FAR E-Verify clause must follow special rules for verifying new and existing employees, including employees in TPS status. Federal Contractor needs to check the Supplemental Guide for Federal Contractors for more information.

U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security is conducting massive I-9 Audits to trap the employers. As part of an I-9 audit, ICE agents review I-9 forms, company payroll records, W-2 reports, and other documents. They seek to determine whether the employer has properly checked the new employee's identity and work authorization, and re-verified authorization, as needed for temporary authorizations. They also ascertain whether any counterfeit documents were used as proof of identity and/or employment authorization. John T. Morton, the new Assistant Secretary of U.S. Immigration and Customs Enforcement (ICE), under the Department of Homeland Security, recently stated that ICE intends to increase its attention to auditing I-9, employment eligibility verification forms. We all are aware that I-9 forms must be completed and retained by U.S. employers under specific requirements.

I-9 audits have dramatically increased in recent months. The audits stand at 652 Notices of Inspection (NOIs) for July 2009, alone. Many more employers will be notified by ICE in the coming months that their I-9s and company records will be audited. Fines for I-9 violations range from $110 for one single, minor or technical violation, up to $3,200 per violation for serious first offenses. A third offense can lead to a fine of up to $16,000, per offense. Employers should take compliance with Form I-9 requirements seriously, as there are multiple possible violations per form.

An I-9 audit may lead ICE agents to evidence that criminal law violations have occurred. ICE may accuse employers of knowingly hiring, retaining, or even harboring workers who are not authorized for employment in the U.S. The first immigration enforcement action by the Obama Administration came to a partial conclusion on August 18, 2009 in Washington state. ICE issued a press release on August 18, 2009 announcing that two corporate directors of a family-owned business in Bellingham, Washington had pled guilty to felony immigration violations. These two directors, siblings, each pled guilty to one federal felony count of aiding and abetting The said company itself has been charged with encouraging and inducing illegal aliens to reside in the U.S. and may face stiff fines for its actions.
ICE will continue to investigate and find employers who flout our laws and hire illegal labor, in order to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce.

It is our sincere advice to employers to abide by the I-9 norms. We will be happy to review your I-9 forms to avoid any embarrassment from ICE in future.

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