Labor & Employment Developments Blog

Companies with employees who are work authorized pursuant to Temporary Protected Status (TPS) are facing an unusual compliance problem. The TPS designations for El Salvador (scheduled to end September 9, 2026) and for Sudan and Ukraine (scheduled to end October 19, 2026) have passed their expiration dates without a Federal Register notice either extending or terminating them.

Instead, U.S. Citizenship and Immigration Services (USCIS) has posted webpage alerts stating that announcements on TPS for the affected countries will be made "at the appropriate time" and that, until then, beneficiaries “retain protection, including work authorization”.

While USCIS webpage alerts provide clarity on whether work is currently authorized, they do not provide employers with the documentation typically relied upon for I-9 compliance.

Overview

Ordinarily, a TPS extension is announced in the Federal Register, which may automatically extend existing Employment Authorization Documents (EADs) to a specific date or detail a plan for EAD renewal via application, and instruct employers on how to complete and update Forms I-9 for affected employees.

Employees working pursuant to their TPS El Salvador, Sudan, or Ukraine EADs now possess EADs and extension notices that appear expired on their face, and they may be asked by employers, landlords, or licensing agencies to provide official documentation that their status has been extended.

Employers face a two-sided risk. Terminating or suspending a TPS employee who remains authorized can expose the company to discrimination claims under the Immigration and Nationality Act’s anti-discrimination provisions, including claims of unfair documentary practices. Yet continuing employment without a clear documentary basis creates confusion in I-9 records.

Best Practices for Employers

Employers are encouraged to seek legal advice for any I-9 compliance concerns, but may consider the following:

• An employee should not be terminated solely because a TPS EAD looks expired. Current USCIS and E-Verify messaging states that Salvadoran, Sudanese, and Ukrainian TPS beneficiaries currently remain authorized to work.
• Dated copies of USCIS TPS webpage alerts and E-Verify updates should be saved and retained with affected Forms I-9.
• Federal Register and USCIS TPS webpages should be monitored closely for updates.

Conclusion

TPS work authorization issued without associated I-9 supporting documentation places additional burdens on employers: employers must ensure that authorized employees are allowed to work to avoid discrimination claims, while being left without the documentation typically issued by USCIS for I-9 compliance.

If you employ TPS beneficiaries from El Salvador, Sudan, or Ukraine, contact the immigration team at Keating Muething & Klekamp to review your Forms I-9 and set up a strategy to maintain I-9 compliance.