Using Employment Authorization from TPS While Holding Nonimmigrant Status

 

Introduction to Using a TPS EAD while Holding Nonimmigrant Status

TPS EADA person with a valid nonimmigrant status may apply for and be granted temporary protected status (TPS). One of the principal benefits of TPS is that a person on TPS may apply for and be granted an employment authorization document (EAD), which allows for employment in the United States. However, certain nonimmigrant statuses that may be held in conjunction with TPS (e.g., F-1, B-2) limit or outright prohibit the employment that a status-holder may engage in and continue to maintain status. USCIS addressed how it will handle these situations in a 2015 FAQ.1 This article will explain USCIS' guidelines for TPS EADs for persons who hold a nonimmigrant status that either limits or prohibits employment.

Using a TPS EAD While on Nonimmigrant Status that Limits or Prohibits Employment

The first question on the USCIS FAQ is:

“Can someone with a non-immigrant status (e.g. F-1, B-2, etc.) apply for TPS? If so, will having or using a TPS-related EAD affect his or her status?”

To understand the question, let us focus on the two statuses USCIS suggests as examples. F-1 (F1) status allows for limited on-campus employment and authorized practical training. B-2 (B2) visitor status does not permit employment in the United States at all.

USCIS states that a person who holds both TPS and a nonimmigrant status must comply with the rules for the nonimmigrant status in order to continue to hold both statuses. Therefore, if a person holding F1 status engaged in employment authorized with a TPS EAD but not under his or her F1 status, he or she would have violated the F1 status. The same holds true for a person on TPS and B2 status who engages in any employment in the United States. A B-1 (B1) business visitor would be considered to have violated his or her B1 status by engaging in employment with an EAD obtained along with TPS.

In order to continue to maintain both statuses, the status-holder must comply with the rules guiding TPS and the second status. In practice, this means that a person with an EAD from his or her TPS who also is in a nonimmigrant status must be cognizant of the limitations the nonimmigrant status places upon employment. Thus, in a different example, if a person holds both TPS and H-1B (H1B) status, the status-holder would not be able to work for a new employer and continue to maintain H1B status unless he or she obtains authorization to do so by taking advantage of H1B portability.

Severe Economic Hardship Waivers for F1 Students

An F1 student may apply for a severe economic hardship waiver in order to seek approval to engage in employment that would not normally be consistent with the maintenance of F1 status.2 Holding TPS status does not in and of itself have an effect on an F1 student's chances for approval of a severe economic hardship waiver. Given the circumstances that would lead to an F1 student being granted TPS, he or she may have grounds for being approved for a severe economic hardship waiver (although approval depends on the specific facts of the student's situation, not that the student was approved for TPS). An F1 student in this situation should consult with his or her designated school officer and with an experienced immigration attorney.

Advice for using a TPS EAD while Holding Separate Nonimmigrant Status

USCIS has decided that, although two of the benefits of TPS are the ability to simultaneously hold a nonimmigrant status and the ability to obtain an EAD, holding and maintaining a nonimmigrant status is a limitation on a major benefit of TPS. It seems like an odd policy to hold that one benefit of TPS limits a different and central benefit of TPS, and it would not be surprising to see this policy changed in the future. However, unless the policy is changed by USCIS or by an administrative or judicial body, it is important for persons who hold TPS and a nonimmigrant status to understand where USCIS stands on the issue in order that they may maintain both statuses.

A person holding both TPS and a nonimmigrant status should consult with an experienced immigration attorney before utilizing an EAD that he or she obtained as a benefit of TPS. The rules regarding authorized and unauthorized employment are specific to each nonimmigrant status.

An F1 student who is subsequently approved for TPS and believes that he or she may be eligible for a severe economic hardship waiver should consult with an experienced immigration attorney in order to determine whether an application would be appropriate.

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  1. USCIS, FAQs: Statelessness and the Ability to Work for Joint F-1/TPS, published on AILA InfoNet at Doc. No. 15090306 (Posted on September 3, 2015)
  2. 8 C.F.R. § 214.2(f)(9)(ii)(C)