*** UPDATE ***
Despite the Supreme Court's decision, USCIS has not issued official guidance as to when the Employment Authorization Documents (EADs) which were extended indefinitely while the law suits were pending would no longer be valid. Instead, they have been putting placeholder dates that extend the EADs. The most recent placeholder date was July 10 and as that date approaches we anticipate that USCIS will provide some guidance but probably not until very late in the day. Please see the guidance below including resources to check and some recommended actions.
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On June 25, 2026, the U.S. Supreme Court issued a decision regarding lawsuits brought by beneficiaries of the Temporary Protected Status (TPS) program from Haiti and Syria. The Court ruled that the current administration has the authority to terminate the TPS designation for these countries. This potentially ends TPS benefits for individuals from Haiti and Syria, and could be a harbinger for those who have TPS from other countries. We will closely monitor how USCIS will implement the court decision and how this impacts status and employment authorization. Never make assumptions about an employee’s employment authorization and please check the USCIS I-9 Central website for official guidance (https://www.uscis.gov/i-9-cent...)
Federal laws make it unlawful for an employer to employ individuals in the U.S. who do not have permission to work in the U.S. A range of immigration status offers such permission to individuals, some of which are incidental to their immigration status while others require the individual also to apply for and obtain an unexpired employment authorization document (EAD). Beneficiaries of the TPS program have the ability to remain in the U.S. and also apply for an EAD.
The TPS program is a humanitarian program where the administration offers individuals from specific countries an opportunity to remain in the U.S. temporarily and not return to their home countries due to a range of reasons, including war and natural disasters. (For a more detailed discussion of TPS, check out information provided by the American Immigration Council: https://www.americanimmigrationcouncil.org/fact-sheet/temporary-protected-status-tps-overview/). Again, not only are these individuals able to remain in the U.S., but they can also apply for an EAD. By showing an employer an unexpired EAD, they are able to work for that employer.
With the latest Supreme Court decision, the question is what is an employer to do where individuals have provided them with an EAD that has expired or where the EAD is expiring. This is a very complex area because the courts and the administration have provided nuanced guidance for EADs that meet strict requirements. For some expired EADs, prior to the June 25, 2026 decision and in light of pending litigation, technically the EADs were to be valid indefinitely or so long as the litigation was pending. USCIS and the E-Verify program nevertheless recommended employers to treat such expired EADs as being valid until certain future dates. The most recent “extension” was until July 1, 2026. Those employers who signed up for the E-Verify program would have received alerts and notification of such treatment. What this would have meant was that as July 1, 2026 approaches, employers would have received updated alerts from the E-Verify program as to how to treat the employees with the expiring EADs. Those employers who are not enrolled in the E-Verify program would have the expiration date on the face of the EAD as a trigger to take further action.
If the litigation was still pending, USCIS and the E-Verify program would have recommended another future date to extend the EAD. Given that the Supreme Court issued a decision on the pending litigation on June 25, 2026, we believe that it is likely that USCIS and E-Verify will not extend the validity of the EADs. Does this mean the EADs will expire as of July 1, 2026? Does this mean that the individuals with such EADs can no longer work? We recommend monitoring updates from USCIS and the E-Verify program, but we believe that it is likely that the employment authorization will be ending shortly and unfortunately the official guidance may not offer much advance notice. Impacted employees would have to seek alternative ways to obtain employment authorization if they have not done so already. Employers have a duty to check on the employees if they believe the above impacts such employees, but should not make any assumptions.
In the meantime, we recommend the following actions:
- Do not automatically terminate your employee.
- Continue to check for USCIS official guidance (https://www.uscis.gov/i-9-central).
- Offer your employee the opportunity to provide alternative proof of employment authorization if they fall within the group impacted by the Supreme Court decision.
- Do not assume the termination of TPS would necessarily mean that an employee from Haiti, Syria, or another TPS country no longer has employment authorization; such individuals may be in the U.S. with employment authorization based on other humanitarian program or may have employment authorization based on another immigration status.
- Note that employers who have actual or constructive notice that an employee no longer has a valid EAD or another valid form of employment authorization would be violating laws if they continue to employ such individuals. There is a fine balance of keeping up to date on official guidance and on preserving the civil rights of the employee.
The above information has been provided for educational purposes. Please consult your member of the Clark Lau LLC team to see how the above impacts your specific circumstances.