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Employment Authorization Announced for Venezuelans

In this notice published March 9, 2021, USCIS announces Temporary Protected Status (TPS) for Venezuelans for an 18-month period beginning March 9, 2021 through September 9, 2022.

What is Temporary Protected Status?

U.S. law authorizes TPS upon a finding that extraordinary and temporary conditions in the foreign state prevent its nationals from returning safely, unless allowing those foreign nationals to remain temporarily in the U.S. is contrary to the national interest of the United States.

Who May Apply

The USCIS announcement allows Venezuelan nationals and certain individuals who last habitually resided in Venezuela, and who have continuously resided in the U.S. since March 8, 2021, and who have been continuously physically present in the United States since March 9, 2021, to apply for TPS and employment authorization (EAD).

Applicants also must be otherwise admissible to the U.S.  As an example, they may not have been convicted of certain crimes, including a single felony or 2 or more misdemeanors.  The U.S. estimates some 323,000 individuals in the U.S. may qualify.

If Approved, What is the Benefit of TPS?

Receiving TPS allows a person to remain in the U.S. with employment authorization for the authorized period.

How Long will an Authorization Period Last?  Can it be Extended?

An initial authorization period may also  be extended, and after a certain number of extensions, a country may be re-designate for TPS.  It is not uncommon for TPS to be extended, sometimes for many years.

Does TPS Provide Permanent Residence or a Path to Citizenship?

It’s important to understand that TPS is not permanent residence, does not provide a path to citizenship, and at some point will be terminated (unless Congress takes other action affecting the specific group of TPS holders from the designated country).  However, TPS does prevent a person from being sent back to a country that is undergoing a severe humanitarian emergency, as determined by USCIS, and to work in the U.S. while they are here.

Applicants Must Apply During the Required Registration Period

There is a required registration period that cannot be missed!  If a qualifying applicant does not register during the required initial registration period, s/he will not be able to apply thereafter except under very limited circumstances.  The required registration period for Venezuelans begins March 9, 2021 and ends September 5, 2021.

Employment Authorization and I-9 Completion

If approved, employers are required to accept the Employment Authorization Document (EAD) on the same basis as any other category, including monitoring the expiration date, and complying with announced extensions.  Because it is common in the case of TPS for the government to extend the EAD automatically based on notice published in the Federal Register, employers should stay current of the applicable deadlines.  See for example this post.

The March 9, 2021 notice announcing this protection for Venezuelans reminds employers that all employment eligibility verification requirements and unfair immigration-related employment practices “remain in full force.”  If you have any doubt or question regarding an employment authorization document, the best course is to contact an experienced I-9 compliance attorney such as Barbara Marcouiller to guide you.

How Does This Affect Deferred Enforced Departure for Venezuelans?

A prior notice in January 2021 authorized Deferred Enforced Departure for Venezuelans from January 20, 2021 through July 20, 2022.  Deferred Enforced Departure (DED) is similar to TPS in some respects in that the affected population is allowed to remain in the US pursuant to the applicable terms and conditions, but there are more restrictions.  A person may have both TPS and DED, but may have employment authorization under only one.  Employment authorization under the DED announcement is set to expire July 20, 2022.  It is unclear whether it will be extended.  We highly recommend working with an experienced immigration attorney to evaluate the best path forward.

For questions regarding TPS, DED, employment authorization, and for employers regarding employees with this status or who may be eligible, contact attorney Barbara A. Marcouiller at 425.822.2228.

NOTE: This post provides timely notice of this important development.  It does not constitute legal advice in any given case, nor does it create an attorney/client relationship.  A detailed review of all the requirements and potential pitfalls is beyond the scope of this post. Thus it is critical to retain legal counsel if you want to know how these and other laws and regulations will affect you.