Pabian Law Client Alert: Supreme Court Allows Administration to End TPS for Haitians and Syrians

Pabian Law Clients and Friends,

Today, the U.S. Supreme Court issued a significant – and devastating – decision affecting Haitian and Syrian nationals, as well as organizations that employ individuals from these countries through Temporary Protected Status (TPS).  In a 6-3 decision, the Supreme Court ruled that the Administration may proceed with terminating TPS for Haiti and Syria and that federal courts generally do not have authority to review the government’s TPS termination decisions under federal administrative law. The ruling overturns lower court orders that had previously blocked the termination from taking effect.

As background, TPS is a humanitarian status that is granted by the U.S. Department of Homeland Security to eligible nationals of specific countries facing ongoing armed conflict, environmental disasters, or other extraordinary crises.  Through this program, nationals that are granted TPS are approved for Employment Authorization Documents (EADs), allowing them to work for any employer in the U.S. without visa sponsorship.  The most common industry in the United States that employs TPS holders is the hospitality industry.

The decision affects more than 350,000 Haitian TPS and about 6,000 Syrian TPS beneficiaries nationwide.  The Supreme Court’s decision has immediate implications for employers who currently employ workers with Employment Authorization Documents (EADs) based on Haiti TPS.

What does today’s decision mean for employers?

Due to today’s decision, employers should begin reviewing their workforce immediately to identify any employees whose work authorization is based solely on Haiti or Syria TPS.

Haitian and Syrian TPS beneficiaries have EADs that were automatically extended by previous Federal Register notices and litigation-related court orders. Following today’s Supreme Court decision, DHS is expected to issue additional guidance regarding the effective termination date of TPS-related benefits, including employment authorization.

At this time, employers should not assume that work authorization ends immediately today. Instead, employers should carefully review the expiration dates on employees’ documents and await official DHS guidance regarding the termination process and any grace periods that may apply.

Practical steps employers should take now

• Identify affected employees
  • Employers should confidentially review their I-9 records and identify employees who may be working pursuant to Haiti or Syria TPS-based employment authorization.
• Review current EAD expiration dates
  • Determine whether the employee’s work authorization is based solely on TPS.  Currently, Haiti TPS-based EAD’s are considered automatically extended until July 1, 2026.  The implementation details of today’s Supreme Court decision are still unfolding, so we do not know yet if this validity date still remains valid or if the termination will be considered effective today.  We will provide more information as it becomes available.
• Do not reverify early
  • Employers should not request updated work authorization documents before reverification is legally required (before July 1) unless an announcement is made.
• Monitor upcoming DHS announcements
  • The Supreme Court’s decision permits DHS to move forward with termination, but employers still need guidance regarding implementation, including when TPS-based employment authorization will actually expire and whether any transition periods will be provided.
• Discuss alternative immigration options with affected employees
  • Some TPS beneficiaries may have alternative immigration options available, including:
    • Employment-based sponsorship
    • Family-based immigration options
    • Pending asylum applications

Employment eligibility verification obligations remain governed by Form I-9 rules, and employers must continue to follow the same reverification procedures that apply in all other circumstances.

Looking ahead

Today’s decision is one of the most significant TPS rulings in the history of the program because it not only allows DHS to terminate TPS for Haiti and Syria, but also limits the ability of federal courts to block similar TPS terminations in the future for countries such as Venezuela, Honduras, Afghanistan and Nepal.  With the Administration already working to terminate 15 out of the 17 TPS grants for various nationalities, more and more foreign nationals are going to be impacted as a result of today’s decision in the weeks and months ahead.

The bottom line is that we have unfortunately reached the end of the road for Haiti and Syria TPS.  While there have been efforts by some elected officials to pass legislation that would allow these individuals to remain in the U.S. and continue to legally work, any such legislation, even if it passed, will not be in effect in time to allow them to remain in the United States and work.

Employers should begin planning now for Haiti and Syria TPS EAD holders to lose their work authorization effective July 1^st (or sooner, if DHS makes an earlier announcement).   These workers will have to be taken off payroll, and their employment will need to terminate immediately.  Unless these individuals are eligible for another immigration status, they will be subject to removal from the United States.

Pabian Law is actively monitoring DHS guidance and will provide additional updates as implementation details become available. If your organization employs workers with Haiti TPS-based work authorization and would like assistance reviewing your workforce or evaluating alternative immigration options for key employees, please contact our office.

Finally, today’s announcement is devastating for so many foreign nationals.  We encourage you to check-in with your international teams and provide necessary support as they navigate these new waters.

Thank you,

Keith and the Pabian Law Team