Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—USCIS announces effective date of termination of TPS for Venezuelans under 2023 designation, (Jun 13, 2025)

By Bruce Buchanan and Jorge Lopez of Littler Mendelson

Following the U.S. Supreme Court's May 19, 2025 decision to allow the termination of Temporary Protected Status (TPS) for Venezuelans under the 2023 designation, on June 6, the USCIS published on its website that the work authorization for this group expired on April 2, 2025 with no grace period.

There is a small caveat to this determination for a small group of individuals who received TPS-related employment documentation—Forms I-797, Notices of Action, and Forms I-94—on or before February 5, 2025 with a validity date of October 2, 2026. These individuals will maintain their status and their documentation will remain valid pending resolution of National TPS Alliance v. Noem.

Employers and immigration attorneys had been waiting for an official press release from USCIS or the Department of Homeland Security; instead, the USCIS merely updated its TPS website on Friday night with no press release.

With this determination, Employment Authorization Documents (EADs) with A12 or C19 codes[1] from Venezuela that have an expiration date of September 9, 2022, March 10, 2024, April 2, 2025, February 2, 2026, or October 2, 2026 (subject to the above caveat), are no longer valid for employment verification purposes. Employees with these EADs are no longer authorized to work in the United States unless they are able to present an alternative basis for work authorization, such as another unexpired EAD with a different code, i.e., C08 or C09,[2] or fit within the above caveat. There are no further automatic extensions announced for this category.

Quick History of How We Got Here

On January 17, 2025, former Department of Homeland Security (DHS) Secretary Mayorkas extended TPS for Venezuelans under the 2023 designation to October 2, 2026, with EADs extended to April 2, 2026. However, on February 3, 2025, new DHS Secretary Kristi Noem vacated the January 17, 2025 extension, thereby terminating TPS for Venezuelans under the 2023 designation as of April 2, 2025.

On March 31, 2025, a U.S. district court judge enjoined Secretary Noem from ending the Venezuelan 2023 TPS designation. On May 19, 2025, the U.S. Supreme Court granted the DHS' ability to rescind TPS and its related employment benefits for Venezuelan nationals granted protection under the 2023 designation, pending an action by the Ninth Circuit Court of Appeals on the merits of the case.

Employer's Burden

One issue that employers will immediately face is how to know if their employees are on TPS for Venezuelans under 2023 designation with EADs having the codes A12 or C19. Under federal law, it is not mandatory to retain supporting documentation except in certain situations under E-Verify. There are a few state carve-outs.[3] Thus, if an employer does not retain supporting documentation, how does it know whether an employer is an A12 or C19 from Venezuela? This information is not normally recorded on the I-9 form. Is an employer required to question every employee with an EAD? There are potential legal ramifications to that approach. If not, how does an employer have knowledge of the EAD's expiration?

In most cases this is an academic discussion because the employee has provided an expiration date in Section 1, Box 4 and/or the employer has recorded the expiration date in Section 2, List A. Thus, if the I-9 form's validity date has expired or is expiring, it is incumbent on the employer to determine if the employee has another work authorization. For example, is the employee an asylee applicant, is a family-based adjustment applicant (application for permanent residence based on relative that can sponsor employee) or has the employee's authorization been extended in a different manner? Plus, TPS for Venezuelans under 2021 designation does not expire until September 10, 2025.

If an employer retains the supporting documentation, the above analysis is moot because it has the actual knowledge with that document to start the analysis.

Employers need to speak with their counsel ASAP to determine how to respond. If an employer has actual knowledge (through documentation or an employee's statement) that an employee's work authorization has expired and they have no alternative documentation, the employer must terminate that employee or place them on an unpaid leave of absence for a defined period of time. Failure to do could lead to a determination by Homeland Security Investigations (HSI) that one is "knowingly employing an undocumented employee," if HSI conducts an I-9 audit.

For an employer that does not retain supporting documentation, a viable argument could be made that it does not have actual knowledge of a lack of work authorization if the I-9 form's validity date has not expired and the employee does not inform its employer of the expiration of its work authorization. Does the employer have constructive knowledge in the same scenario? That is uncertain, so each employer needs to evaluate its situation.

Other TPS Designations

Venezuelan nationals granted TPS under the 2021 designation remain unaffected. However, such individuals should not expect any extensions of TPS once the 2021 designation date for Venezuela ends on September 10, 2025.

Employees with an A12 or C19 code on their EADs from other countries are not impacted by this change for Venezuelans. Employers with other TPS nationality employees are subject to other DHS guidelines associated with those countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Bruce Buchanan and Jorge Lopez

Littler Mendelson

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E-mail: JKlein@littler.com

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Footnotes

1 The codes/categories A12 and C19 are listed on the EADs and designate under what status an employee receives their EAD. In this case, A12 and C19 mean TPS recipient.

2 The codes/categories C08 and C09 are listed on the EADs and designate under what status an employee receives their EAD. In this case, C08 means asylee applicant and C09 means adjustment of status applicant.

3 In Florida and Tennessee, if an employer does meet the employee threshold for mandatory use of E-Verify and is not enrolled in E-Verify, it must retain supporting documentation.

Attorneys: (Littler).

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