USCIS Office of Policy and Strategy: Proposed Rule affecting the Employment Authorization of TPS Beneficiaries and Applicants

On September 8, 2011, the USCIS Office of Policy and Strategy and the Office of Public Engagement held an engagement to discuss the employment authorization of Temporary Protected Status (TPS) beneficiaries and applicants.

Background

USCIS initiated a review of the current policies related to TPS in 2010.  During this review, we noted that 8 CFR 244.12:

• Allows TPS beneficiaries and applicants who have TPS withdrawn or denied to remain employment authorized until their Employment Authorization Documents (EADs) expire, rather than upon withdrawal or denial; and
• Extends the employment authorization of TPS beneficiaries or applicants whose TPS has been withdrawn or denied through any appeal to the Administrative Appeals Office (AAO) and/or a de novo determination during removal proceedings.

TPS beneficiaries are authorized to work based on their status.  TPS applicants who are found to be prima facie eligible for TPS may also receive employment authorization as a “temporary treatment benefit” while their TPS applications remain pending.  USCIS is considering a regulatory change that would terminate their employment authorization if TPS is withdrawn or denied, rather than allow it to exist until the expiration of their EADs.  Additionally, USCIS is considering:

• Whether an alien who has appealed a TPS denial or withdrawal decision to the AAO or who has sought de novo review of such a decision in removal proceedings should be permitted, in certain circumstances, to request that USCIS issue an EAD while his or her TPS request is under review; and
• If so, what, if any, limitations should be placed on the EADs that may be issued while an AAO appeal is pending or while the TPS request is under review in removal proceedings.

Last updated:09/09/2011

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