When a major Temporary Protected Status (TPS) deadline passes without an official Federal Register notice, HR and immigration compliance teams are often left in limbo. The TPS designations for Ukraine and Sudan reached their scheduled October 19, 2026, expiration date without the Department of Homeland Security (DHS) publishing a formal extension or termination notice. Under federal statute (8 U.S.C. § 1254a(b)(3)(C)), if DHS does not make a timely determination, designations automatically receive a statutory six-month extension. USCIS has confirmed that affected individuals maintain their legal status and work authorization while administrative notices are finalized.
However, because formal I-9 and E-Verify guidance has not yet appeared in the Federal Register, employers face an operational challenge: How do you keep employment records compliant when official documentation rules haven’t caught up with statutory reality?
Below is a practical roadmap for managing current staff and incoming hires without exposing your organization to discrimination claims or audit penalties.
Existing employees: How to handle reverification
If you employ individuals who presented an Employment Authorization Document (EAD) under TPS categories A12 or C19 reflecting an October 19, 2026, expiration date, handle reverification with care.
Recommendations on what NOT to do
- Do not terminate, suspend, or place employees on unpaid leave. USCIS has confirmed their authorization remains valid. Taking adverse employment action based on the face date of their expired card can trigger severe discrimination investigations and civil penalties under the Immigration and Nationality Act (INA § 274B, 8 U.S.C. § 1324b), enforced by the DOJ’s Immigrant and Employee Rights Section (IER).
- Do not guess or write speculative dates in Form I-9. Avoid manually writing a projected expiration date (such as adding six months to write April 19, 2027) into Section 3 or reverification fields until official USCIS instructions dictate exactly which date to record.
Recommended compliance steps
- Document the Gap: Retain dated printouts or PDF screenshots of the official USCIS TPS alert pages for Ukraine and Sudan confirming that employment authorization remains valid while formal Federal Register notices are pending.
- Attach a Compliance Memorandum: Place a concise memo in the employee’s I-9 file (or attach it to your electronic I-9 system). The note should state: “Employee remains authorized to work pursuant to USCIS public guidance and statutory provisions under 8 U.S.C. § 1254a(b)(3)(C) pending formal DHS Federal Register publication. Official Form I-9 reverification will be completed once DHS issues explicit recording instructions.”
- Reports: Track these records on an administrative watch list. Once DHS releases the official Federal Register notice, update Section 3 following USCIS’s exact instructions.
New hires: Completing Section 2
- Onboarding a new employee presenting an EAD with category A12 or C19 showing an October 19, 2026, expiration date requires balancing anti-discrimination rules with Form I-9 validation constraints.
- Employees are entitled to present any valid document or combination of documents from the Lists of Acceptable Documents. Under statutory extension rules and active USCIS alerts, these cards remain facially valid evidence of work authorization.
- Paper vs. Electronic I-9 Platforms:
- Paper I-9s: If completing manually, record the document details and affix the USCIS alert printout along with a compliance memo. Do not invent an expiration date; consult immigration counsel on whether to record the card date with an explanatory memo or wait for federal entry guidelines.
- Electronic I-9 Vendor Systems: Many automated HR platforms will reject an EAD if the card’s physical expiration date is in the past, or they may strictly demand a published Federal Register code. Check with your vendor immediately to see if they have enabled temporary overrides or bridge workflows for Ukraine and Sudan TPS.
- Employers cannot demand that the worker provide an alternative document (like an unexpired foreign passport with an I-94 or an unrestricted Social Security card) simply because their TPS card has passed October 19. Requesting specific or additional documents constitutes unlawful document abuse under 8 U.S.C. § 1324b.
Navigating E-Verify
- If an E-Verify query generates a DHS TNC due to the unreflected extension, do not take adverse action. Notify the employee, give them the Further Action Notice, and allow them the standard timeframe to contest the result.
- If the system temporarily flags a verification issue, document your case logs with reference to USCIS’s confirmation of continued status.
Best practice
- Identify all current workers on TPS Ukraine and Sudan (Categories A12 and C19).
- Ensure payroll and site managers understand that no terminations or suspensions may occur.
- Save timestamped PDF copies of USCIS TPS alerts for your audit trail.
- Insert a standardized compliance note in affected files pending formal instructions.
- Verify how your electronic I-9/E-Verify platform handles post-Oct 19 TPS entries.
- Set DHS alerts to reverify promptly once published.
During rare gaps in publication, good-faith compliance means verifying legal work authorization while avoiding unlawful discrimination.
The information provided in this article does not, and is not intended to, constitute formal legal advice; instead, all information, content, and materials available in this post are for general informational purposes only. Immigration laws, Form I-9 compliance standards, and Department of Homeland Security regulations change frequently, and guidance may vary based on individual circumstances or specific electronic verification systems. Employers should consult an experienced immigration attorney or employment counsel to obtain advice regarding specific compliance procedures, Form I-9 audits, or workplace discrimination inquiries.
Vijay Thakkar has more than 12 years of HR Operations experience, including 8 years helping employers improve their Form I-9 management and E-Verify compliance, especially for mergers & acquisitions, internal and external I-9 audits, training and development, migration to the electronic system, I-9 escalations, quality checks, strategic planning, and building standard operating procedures with a keen interest in US immigration and global mobility.
Prior to joining Experian, Thakkar has served as Levi Strauss & Co’s I-9 subject matter expert, an investigator to the behavioral health unit at the US Army, and Sustainability Analyst at his alma mater the University of Texas at Arlington from where he earned his Master’s in Human Resource Management and MBA.
