After reaching out to both U.S. Citizenship and Immigration Services (USCIS) and the Department of Justice's Immigrant and Employee Rights Section (IER) for clarification, we learned that USCIS issued an update to its guidance regarding application of the 540-day automatic extension for certain TPS Venezuela recipients under the 2023 designation that permits them to continue working.
USCIS has now adopted a broader interpretation that more closely aligns with the May 30 court order. The revised guidance states:
"This includes TPS-related EADs with a 'Card Expires' date of April 2, 2025, when combined with a Notice of Action indicating the Form I-765 renewal application was received on or before February 5, 2025, that automatically extends employment authorization and EADs for up to 540 days from the date on the face of their EADs. All TPS-related documentation with a validity date of October 2, 2026, received after February 5, 2025, is no longer valid and those individuals under the 2023 designation no longer have TPS."
This replaces the previous guidance, which had stated:
"TPS beneficiaries who received TPS-related employment authorization documents, Forms I-797, Notices of Action, and Forms I-94 issued with October 2, 2026 expiration dates on or before February 5, 2025 will maintain that status, and their documentation will remain valid during the course of the litigation."
What Does This Mean for Venezuelan TPS Holders?
This change expands eligibility for the 540-day work authorization extension to a broader, though still limited, group of individuals, provided they meet the updated criteria, and allows them to continue working. Employers and TPS Venezuela recipients should carefully review any recent employment authorization decisions or terminations in light of this new guidance.
What Employers and TPS Holders Need to Know
Employers should carefully verify the issuance date of their employees' TPS-related documentation.
2023 TPS Venezuela. For 2023 TPS Venezuela recipients:
- If the I-797C Receipt Notice has a "Received Date" before February 5, 2025 – and otherwise meets the requirements for an automatic extension – an EAD with an April 2, 2025 expiration date would be valid as a 540-day automatic extension or until the termination of the pending litigation.
- EADs with an October 2, 2026 expiration date are valid if issued on or before February 5, 2025.
2021 TPS Venezuela. For 2021 TPS Venezuela recipients, as of now these individuals generally have work authorization until September 10, 2025 with these notes:
- September 9, 2022 EAD is expired and no long valid. However, an individual may now have a new EAD with a Sept 10, 2025 date.
- March 10, 2024 EAD is expired, but an individual may extend the EAD with a valid I-797C Receipt, for 540 days filed before March 10, 2024, providing a new validity date of September 1, 2025
While the shifting guidance has caused some confusion, this update is ultimately a positive development for affected individuals and employers. We expect USCIS to provide additional updates and clarifications the week of June 30th.
For background and the original analysis, see our earlier post.
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.
