As an update to the first Client Alert, we are writing to provide guidance for employers with employees on TPS or parole programs who may be losing status pursuant to Trump Administration rollbacks such as the one outlined below. These terminations place employers in a tenuous situation where workers whose immigration and work authorization documents that were valid at the time of onboarding may suddenly become invalid. This raises the question of what employers’ obligations and risks are in this situation, including both maintaining I-9 compliance and minimizing any risks of violating I-9 anti-discrimination rules. These are outlined in more detail below.
The Compliance Challenges
I-9 rules require employers to track and reverify the employment authorization of workers whose documents are expiring. This includes when a document is revoked or made to expire early through a government action or court order. This is a particularly challenging burden, as it requires employers to track immigration updates, and even more, many organizations may not even realize that they are employing workers under a specific program such as TPS, humanitarian parole, or some other status (as this is not listed on the I-9 form or even necessarily on the underlying immigration documents used to complete the I-9).
Therefore, this obligation places employers in a precarious position. If an organization takes no action to determine whether employees are impacted, the organization risks noncompliance by continuing to employ workers with invalid work authorization. However, if an organization asks workers about their status or asks them to provide documentation to show whether they are impacted by a particular program termination, there is serious risk of violating anti-discrimination laws. Specifically, when completing the I-9, an employer must accept and evaluate whatever documentation a worker provides and cannot ask for a specific document or ask about a worker’s status.
What can Employers do?
Although organizations should be sure not to ask workers about their immigration status or ask them to provide specific documents, there are steps an employer can take to determine if workers are impacted.
First, workers have an obligation to report if their work authorization has been revoked or otherwise impacted by a government action. Therefore, employers can inform employees of immigration developments and/or remind employees that they must inform the employer if they are no longer authorized to work in the United States.
Secondly, employers can review I-9 records to determine employees who might be impacted. For example, individuals authorized to work under TPS are issued an Employment Authorization Document (EAD) card with category A12 or C19 listed as the “category” on the front of the card. Therefore, if for I-9 purposes, a Venezuelan citizen presented an EAD card showing one of those categories, that would be evidence that they are in TPS and might be impacted by the termination of TPS for Venezuela. However, to further complicate matters, workers under the “2021 designation” of TPS are not impacted (as those individuals should have an EAD card valid until September 2025). Therefore, only Venezuelans under the “2023 designation” of TPS (whose EAD card has an expiration date of April 2, 2025) would be impacted.
Employers should avoid actions that could be viewed as discriminatory such as reviewing only the documents of workers of a certain nationality. However, if an employer reviews I-9 records of all workers who presented EAD cards or all workers who presented EAD cards with certain categories (such as A12 or C19), this would not be viewed as discriminatory, as long as all workers in the category were handled the same way.
What to do if you cannot determine whether a worker is in an affected category?
Some employers may not necessarily have a copy of the underlying immigration documents used to complete Form I-9. Additionally, even if copies of documentation are on file, in some cases those documents might not provide evidence of the specific status a worker has. In these situations, unless a worker informs you of their status, the employer does not have knowledge and should not take any action. Taking action to reverify without specific knowledge of expiring status could be considered discriminatory.
What to do right now?
For Venezuelan employees whose I-9 verification is otherwise valid, there is no action to take currently, as DHS has not yet provided guidance regarding the Supreme Court case outlined below. Similarly, there are court challenges pending regarding potential rollbacks for other programs, including TPS for Haiti and the CHNV program (humanitarian parole for Cubans, Haitians, Nicaraguans, and Venezuelans), which means no action is currently required for these programs either. However, we expect guidance to occur shortly, which is why it would be prudent to identify workers who might be impacted, especially under Venezuelan TPS, as outlined above.
Additionally, in the future, before taking any action to reverify an I-9 based on a government action or court order, we recommend reaching out to your employment lawyer to see if there are any employment-law actions to take into consideration.
Please do not hesitate to reach out with any questions.
Thank you,
Keith and the Pabian Law Team