EAD and TPS Work Authorization for Maintaining I-9 Compliance

Employers must pay special attention to Employment Authorization Document (“EAD”) and Temporary Protected Status (“TPS”) work authorization as part of maintaining I-9 compliance.

Work authorization is ever-changing in the current climate. The rules governing TPS and EAD validity are shifting on a near-continuous basis, driven by successive actions from the Department of Homeland Security and countervailing court interventions. Now, more than ever, it is imperative that employers carefully monitor EAD and TPS expiration.

EAD and TPS Explained

Prior to the Immigration Reform and Control Act of 1986, employers were not legally required to verify work authorization of employees. The EAD program changed this. It designated specific classes of foreign nationals as individuals who may work lawfully in the United States, issuing these noncitizens a physical card that authorizes them to do so.

The TPS program, established under the Immigration Act of 1990, provides a form of humanitarian relief to nationals of designated countries experiencing ongoing armed conflict, environmental disasters, or other extraordinary conditions. TPS holders receive protection from deportation and the ability to obtain an EAD. Up until recently, TPS work authorization was rather stable, with the Secretary of Homeland Security periodically reviewing and renewing country designations based on prevailing conditions in those countries.

The Current Approach by DHS

Work authorizations have changed significantly under the current administration. DHS undertook a systematic review of TPS country designations, terminating many, and taking the position that many existing designations no longer satisfy the original statutory intent of the program. 

The practical result has been a wave of litigation. Courts across the country have intervened in several of these terminations, issuing stays and vacatur orders that have kept TPS protections and EAD work authorizations in place despite expiration or termination dates. This means that employers should pay special attention as many EADs may remain valid longer than their printed expiration dates.

TPS & EAD Status by Country (as of March 24, 2026)

Parole v. TPS Distinction

Not all work authorization held by nationals of TPS-designated countries is based on TPS. Several TPS-designated countries, namely, Cuba, Haiti, Nicaragua, and Venezuela (collectively “CHNV”), were also covered by separate humanitarian parole programs known collectively as the CHNV Parole Processes. Under these programs, certain nationals of those countries were paroled into the United States and received employment authorization on the basis of their parole status, not on the basis of TPS. TPS and parole are separate and distinct immigration designations, and the legal status of one does not govern the other. However, in some cases a foreign national may have been paroled in and then applied for and received TPS designation.

This distinction poses significant practical consequences. On March 25, 2025, DHS announced by Federal Register notice the termination of the CHNV parole programs, effective immediately, and its intention to terminate the temporary parole periods of individuals paroled under those programs on April 24, 2025, along with the revocation of parole-based employment authorization. Although a federal court initially issued a preliminary injunction staying portions of that termination, the Supreme Court of the United States lifted that injunction in favor of the Government on May 30, 2025. See Noem v. Svitlana Doe, 605 U.S. (2025). 

As a result, DHS has proceeded with terminating parole granted, and employment authorization, under the CHNV programs.

Thus, employers dealing with employees who are nationals of Haiti, Nicaragua, Venezuela, or Cuba and hold an EAD, must determine whether that employee’s work authorization derives from TPS or from CHNV parole, and proceed accordingly. 

An EAD issued on the basis of CHNV parole, identifiable by the C11 category code, is no longer valid after the Supreme Court’s decision and DHS’s subsequent revocation. 

By contrast, an EAD issued on the basis of TPS may remain valid, depending on the current status of the relevant TPS designation and any applicable court orders, as discussed in the country-by-country summary above.

Best Practices for Employers Navigating EAD/TPS Work Authorization

It is essential that employers pay close attention to EAD/TPS expiration dates and updates.

TPS/EAD termination dates are being announced with relatively short lead times, with as little as sixty-day notice. Courts are also issuing and lifting stays with little warning, some coming just days before scheduled expiration dates. This means that the gap between a printed expiration date and the actual legally operative date can be significant in either direction, and can no longer be trusted on its face. This is why it is especially imperative that employers keep track of these individuals and stay apprised of updates.

1. Track Work Authorization Expiration Dates on the I-9

Upon hiring any employee whose work authorization is based on a time-limited document, including an EAD or TPS-based EAD, employers should immediately notate the expiration date and associated country, and make plans to actively track and flag upcoming expirations. In the current climate, letting an expiration date slip by unnoticed is a compliance risk that employers may not be able to afford.

2. Monitor EAD Expiration Regularly

As EAD/TPS terminations are being announced, courts across the nation are intervening, appeals are being filed, and the Supreme Court has already weighed in at least once. Employers verifying I-9 documents and individuals relying on TPS-based work authorization should not assume that a printed expiration date tells the full story.

It is best practice to conduct a final re-check of the most current legal status of the employee’s TPS designation and EAD validity, including the latest Federal Register notices, USCIS announcements, and relevant court orders, before taking any adverse employment action.

3. What Is an Employer’s Obligation to Track the News and Select Employees for Review?

An employer is not required to track the daily news for guidance on whether an employee’s EAD has been cancelled due to a termination of TPS or other status. However, if DHS does make the employer directly aware of the names of specific employees affected, then they are on notice that they need to review those affected I-9s. To date, we are not aware that the E-Verify program has been providing specific names.

Compliance Risks

Employers who fail to properly monitor work authorization risk falling out of I-9 compliance. 

Although I-9 audits remain relatively rare in practice, knowingly continuing to employ an individual who lacks valid work authorization may result in I-9 penalties of approximately $2,500 per violation. 

Conversely, erroneously terminating an employee who in fact holds valid work authorization can trigger a complaint with the Department of Justice, Immigrant and Employee Rights Section (“DOJ IER”). The process of defending a DOJ IER investigation or enforcement action can cost an employer $50,000 to $100,000 or more in legal fees alone, in addition to potential back pay awards, civil penalties, and reputational harm. This asymmetry of risk underscores the caution employers should exercise before terminating any employee whose TPS or EAD status is uncertain.

Where ambiguity exists, it is best practice that employers construe ambiguities in favor of the employee’s continued work authorization and seek guidance from qualified immigration counsel before taking any adverse action.

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