DHS Cuts Off Protected Status for Haiti: What Employers Need to Know

50,000 Haitians to lose work authorization in July 2019

About 50,000 Haitians who’ve lived in the United States since an earthquake devastated Port-au-Prince, the island nation’s capital in 2010, will lose protected immigration status and the work authorization that comes with it in July 2019.

Acting Secretary of the Department of Homeland Security Elaine Duke announced Nov. 20 that the temporary protected status (TPS) designation will permanently end for Haiti eighteen months after its current January 2018 end date.

The announcement follows recent news that DHS is terminating TPS for 2,500 Nicaraguans effective Jan. 5, 2019 after nearly two decades, and is extending the status for 57,000 Hondurans through July 2018, at which time their fate will be reconsidered.

TPS was created by Congress in 1990 and offers foreign nationals temporary permission to live and work in the U.S., instead of being returned to countries that are deemed unsafe after facing natural disaster, armed conflict or other emergency situations. More than 325,000 people from 10 countries have TPS and have resided in the U.S., in some cases, for decades.

Haitians were provided the provisional status and protected from deportation after a 7.0 magnitude earthquake hit the island, claiming up to 316,000 lives and displacing more than 1.5 million people. TPS has been routinely renewed for Haiti ever since.

The Trump administration has indicated it will take a harder line on TPS than previous administrations, primarily because the program is supposed to be temporary and was never intended to bestow long-term residency.

DHS said that the decision to terminate TPS for Haiti was made after “a review of the conditions upon which the country’s original designation were based and whether those extraordinary but temporary conditions prevented Haiti from adequately handling the return of their nationals, as required by statute.” The department determined that the conditions caused by the earthquake no longer exist. “Since the 2010 earthquake, the number of displaced people in Haiti has decreased by 97 percent,” DHS said. “Significant steps have been taken to improve the stability and quality of life for Haitian citizens, and Haiti is able to safely receive traditional levels of returned citizens. Haiti has also demonstrated a commitment to adequately prepare for when the country’s TPS designation is terminated.”

Haitians with TPS will be required to reapply for employment authorization documents to legally work in the United States beyond January 2018. They may also seek an alternative lawful immigration status before their TPS runs out in July 2019.

“As TPS expires for various countries, key employees that have been with the organization for years could be without work authorization and employers could have to fill unanticipated vacancies,” said Lynn Shotwell, executive director of the Council for Global Immigration, an advocacy organization supporting workforce mobility and employment-based immigration based in Alexandria, Va., and an affiliate of the Society for Human Resource Management.

Employers may not even know if they have TPS recipients in their workforce but need to be mindful of antidiscrimination provisions of immigration law. Employers should not attempt to determine who is or is not a TPS recipient by looking at employment verification records or making inquiries if workers have not volunteered that information, Shotwell said. Neither should employers terminate employees merely in anticipation that they may lose their work authorization at a future date.

“If your organization has known TPS recipients, it is reasonable to do workforce planning around how those positions will be filled if those employees lose work authorization,” Shotwell said.

Workforce Impact

Organizations ranging from the U.S. Chamber of Commerce to the American Immigration Council have asked DHS to keep TPS in place for countries with large populations living in the United States like Haiti, Honduras and El Salvador, which affects 200,000 Salvadorans whose protection expires in March 2018.

Neil Bradley, a senior vice president and the chief policy officer for the chamber, argued that industries such as construction, food processing, hospitality and home health-care services will be greatly affected if nationals from these countries lose work authorization.

Royce Bernstein Murray, the policy director of the Washington, D.C.-based American Immigration Council says that Haitians with TPS are crucial in industries such as construction in Florida, a state that stands to benefit from their skill set as it recovers from recent hurricanes. According to the Center for Migration Studies, a New York City-based think tank, Haitians with TPS also work in restaurants and food services, landscaping, child daycare, grocery stores and hospitality. The labor force participation rate of the TPS population from Haiti is 81 percent, well above the rate for the total U.S. population at 63 percent.

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