March 12, 2023

The Ninth Circuit Court of Appeals will have an en-banc rehearing. The rehearing may result in a further extension of the Temporary Protected Status (TPS) for individuals already benefiting from the status and waiting for a final ruling in this case. These individuals include those from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

In 2018, a federal district court in California issued a nationwide injunction. It prevented the administration from terminating the TPS status of individuals from El Salvador, Haiti, Nicaragua, and Sudan. Not long after this, TPS beneficiaries from Nepal and Honduras received injunctive relief. A three-judge panel on the Ninth Circuit set this ruling aside in 2020. However, it did not take effect due to a governmental agreement not to terminate TPS status while the plaintiffs sought a rehearing.

In 2021, the administration negotiated with the TPS plaintiffs concerning how they might obtain permanent status. The case did not continue during this time. Instead, it resumed in October 2020 after negotiations resulted in an impasse. The government agreed to continue TPS protections. It would also continue work authorizations for the countries involved in the case for at least one year, or until June 20, 2024, if the program ended through litigation. The next step is the upcoming en banc hearing.

The current administration has decided to continue defending the previous administration’s decision to terminate TPS for the countries involved in this case. In this case, it insists that the courts cannot substitute their decision for the administration’s. It argued that the administration has considered granting TPS to other countries. It cited examples including Ethiopia, Ukraine, Afghanistan, Venezuela, and Cameroon in this argument. It also mentioned the extended and re-designated TPS for Sudan, Haiti, South Sudan, Syria, and Burma.

However, the administration may become more inclined to settle the case in a way that proves advantageous for the class. The current regulations would bind the 100,000+ beneficiaries to the government’s decision to extend their TPS to June 20, 2024, or for at least one year beyond a potential program termination through litigation. Again, these beneficiaries include those from Honduras, Nepal, El Salvador, and Nicaragua.

Employers with TPS beneficiaries must track when the relevant work authorizations expire. They must also prepare to reverify these workers’ I-9 forms. Unfortunately, this step is often challenging due to the many documents available to verify an employee’s eligibility. The easiest way to ensure you complete Form I-9 correctly is to use an electronic I-9 management system, which will guide you through the entire process and store the forms for easy retrieval as needed.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.

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