On March 16, 2022, the U.S. Department of Homeland Security (“DHS”) announced the designation of Afghanistan for temporary protected status (“TPS”) for eighteen months to help protect Afghan nationals in the United States from returning to unsafe conditions. Secretary Alejandro N. Mayorkas noted “TPS will also provide additional protections and assurances to trusted partners and vulnerable Afghans who supported the U.S. military, diplomatic, and humanitarian missions in Afghanistan over the last 20 years.” TPS designation is available to nationals of Afghanistan who are already residing in the United States as of March 15, 2022, and meet all other requirements, including undergoing security and background checks.
The designation of Afghanistan to TPS will aid Afghan nationals who were evacuated in August 2021 and granted humanitarian parole, which allows the government to temporarily waive immigration requirements to enter the US. “Through Operation Allies Welcome, most Afghan nationals who arrived as part of the evacuation effort were paroled into the United States on a case-by-case basis, for humanitarian reasons, for a period of two years and received work authorization.” However, because in some cases immigration officials gave Afghans “as little as one year to regularize their status in the U.S” many evacuees are “fighting a ticking clock to find a pathway to remain in the U.S. by the end of August.” TPS is an important protection for those Afghans who, due to processing delays by US Citizenship and Immigration Services (“USCIS”) , would find themselves in immigration limbo come this September.
TPS allows nationals of designated countries to remain in the United States for a specified period of time, which may be extended at the discretion of DHS, due to conditions in their respective home countries that would prevent a safe return. The types of conditions that qualify for TPS designation include: ongoing armed conflicts, environmental disasters, and other extraordinary, temporary conditions. Foreign Nationals who are granted TPS are shielded from removal from the US, can obtain work authorization, and may be granted travel authorization. TPS “is a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status.” Those who “attempt to travel to the United States after March 15, 2022, will not be eligible for TPS.” Details of this TPS designation will be posted soon in the Federal Register.
UPDATE: November 23, 2021: USCIS announced on November 21, 2022, that certain Ukrainian and Afghan parolees with specific classes of admission are employment authorized incident to their parole. This measure will allow parolees to use their unexpired Form I-94 record as proof of their ability to work legally in the US in accordance with Form I-9, Employment Eligibility Verification for the first 90 days of their being hired. However, Ukranian and Afghan parolees must still file a Form I-765 to receive a physical EAD card which will need to be presented to employers after the initial ninety-day period. Unfortunately, USCIS has not given any indication as to what steps will need to be taken if parolees are not issued their EAD cards in the ninety-day period should processing backlogs ensue.
Ukranian and Afghan parolees whose unexpired Form I‑94, Arrival-Departure Record, contains a class of admission of “UHP” or “OAR” on the document, may present it to employers as an acceptable List A receipt that temporarily shows identity and work authorization for Form I‑9, Employment Eligibility Verification.
Ukranian parolees whose unexpired Form I‑94, Arrival-Departure Record, contains a class of admission of “DT” issued between February 24, 2022, and September 30, 2023, and the document indicates Ukraine as the country of citizenship, may present it as an acceptable List A receipt that temporarily shows identity and work authorization for Form I‑9.
Within 90 days of being hired, or in the case of reverification, the date employment authorization expires, the employee must present the following to the employer:
An unexpired Employment Authorization Document (EAD), or
An unrestricted Social Security card and a List B identity document from the Form I-9 List of Acceptable Documents.
Foreign nationals who received a Form I‑94 at the time of entry into the United States should visit the U.S. Customs and Border Protection’s Form I-94 page online to obtain a copy of their I-94.
USCIS is also exempting the fee to file Form I-765 for Ukrainian parolees filing for an EAD by mail. Afghan parolees under “OAW” are already exempt from the fee for an initial paper-filed Form I-765 Application for Employment Authorization (and a replacement EAD) through Sept. 30, 2023.
Effective Dec. 5, 2022, USCIS will be able to process fee exemptions for online filings of Form I-765 for eligible Ukrainian and Afghan parolees. USCIS encourages use of online filing for more efficient processing as well as applying for a Social Security Number or replacement card using Form I-765.
UPDATE May 20, 2022: DHS has published its final guidance in the Federal Register which provides specific information about how to register for TPS under Afghanistan’s designation from May 20, 2022 through November 20, 2023. As noted above, the TPS designation allows eligible Afghan nationals (and individuals having no nationality who last habitually resided in Afghanistan) who have continuously resided in the United States since March 15, 2022, and who have been continuously physically present in the United States since May 20, 2022, to apply for TPS.