Immigration remains a central issue in the 2024 U.S. presidential race, and recent headlines have focused on communities of Haitian refugees in Ohio. What is often lost in the debate is that these Haitians, and thousands of other migrants from war-torn or unstable nations, are present in the U.S. lawfully and are authorized to work. Each year, thousands of migrants join the U.S. workforce through government programs intended to provide relief to those fleeing dangerous situations in their home countries. Most migrants arriving are between 16 and 55 years old – prime working age. These individuals are expected to increase the labor force by 5.2 million people – offsetting a decline in labor force participation by U.S. adults due in part to the aging U.S. population.
The government programs are complex and can be confusing. Below we present two different types of migrant programs and employer responsibilities with respect to these authorized workers.
Temporary Protected Status
Temporary Protected Status (TPS) is a U.S. humanitarian relief program that allows individuals from designated countries experiencing significant crises — such as armed conflict, natural disasters or other extraordinary conditions — to live and work in the U.S. temporarily. TPS is granted for a specific period and may be renewed depending on the situation in the home country. The Department of Homeland Security is responsible for designating the specific countries whose nationals may be eligible for TPS. Recent examples include Haiti, Yemen, Venezuela and Syria. Countries currently designated for TPS may change based on ongoing conditions, and the status can be crucial for individuals unable to return home safely.
To qualify for TPS, applicants must meet certain criteria, including continuous residence in the U.S. since a designated date, and must not have been convicted of certain crimes. While TPS provides protection from deportation, it does not lead to permanent residency or citizenship. However, once granted TPS, individuals can apply for work authorization, allowing them to obtain a job legally. Work authorization is evidenced by an Employee Authorization Document (EAD), which is a "List A" document for Form I-9, meaning that no other identification or documentation is required and should not be requested. This ability to work is crucial for many TPS holders, as it enables them to support themselves and their families while living in the U.S.
Asylum
Asylum is a form of protection for individuals who have fled their home countries due to persecution or a well-founded fear of persecution based on specific grounds, such as race, religion or political opinion. A person need not be from a designated country to seek asylum. A famous example is Albert Einstein, who sought asylum in the U.S. in 1933 after the Nazis came to power in Germany. Individuals granted asylum can apply for a permanent residency after one year.
Individuals seeking asylum can apply for work authorization after their application is filed, typically 150 days later, if the asylum application is not denied or still pending. Like those with TPS, asylees with work authorization receive an EAD that can be used to complete Form I-9.
Employer Responsibilities
TPS holders and asylees with work authorization are protected by laws such as the Civil Rights Act, which prohibits employment discrimination based on factors including national origin. This means that an employer may not discriminate against a TPS holder or asylee in hiring, promotions or other employment-related decisions.
When employing a work authorized TPS holder or asylee, the employer should complete Form I-9 based on the EAD or other acceptable documentation. Because EAD cards typically have an expiration date, the Form I-9 should be re-verified upon expiration. Most TPS holders and asylees are eligible for automatic extension of their EAD cards if they apply for extension prior to expiration. At present, the automatic extension is 540 days. Employees relying on the automatic extension should present their new EAD card to employers when it is received.
Conclusion
U.S. immigration policy with respect to those fleeing dangerous situations remains complex, and the debate over these various programs and their impact on communities will likely continue long past the upcoming election. But for now, refugees and asylees are a large and growing part of the workforce, and employers may increasingly look to migrants for acquiring the talent needed to drive business results.
For questions concerning TPS and asylee programs, please contact Dan Persinger, Sarah Bileti, Christopher LeClair or your Warner attorney.
