Last Thursday, U.S. Citizenship and Immigration Services notified employers who use E-Verify – the opt-in system that automatically checks whether employees have work authorization in the U.S. – about TPS for El Salvador.
The notification opened with: “ALERT: Temporary Protected Status (TPS) designation of El Salvador and related benefits are set to terminate on Sept. 9, 2026.”
Here’s the thing. As followers of TPS (or readers of this column) know, the Department of Homeland Security was supposed to announce last month whether it was extending TPS for El Salvador beyond September — and it didn’t. So according to federal law, that means it’s supposed to issue an automatic six-month extension.
But here’s the other thing. The Supreme Court just handed this administration a ruling that says no one is allowed to sue DHS over violations of the federal law that governs TPS. So, no one knows what the administration actually intends to do on Salvadorian TPS.
Did that announcement quietly tip the administration’s hand? Signal that the administration plans to abruptly and illegally terminate TPS for El Salvador? Or is it trying to bully employers into firing their workers with TPS by making them think this announcement means they’ll lose protections and work permits soon?
Obviously, either of these possibilities spells trouble for the 150,000 Salvadorans who’ve had TPS in the United States since 2001. But it’s still critical for immigrants and their employers to know which one it is. Especially because USCIS spent July using the E-Verify notification system to tell employers that Haitian TPS-based work permits were set to expire in a matter of days, all when the government knew full well it didn’t have the authority to actually revoke them yet.
In order to explain, we need to dive into the nitty-gritty of work permits (formally known as Employment Authorization Documents, or EADs). Being authorized to work legally in the U.S. isn’t the same as having legal status in the U.S. You can have one without the other.
In a response to questions about the airport arrest of a San Diego Padres coach, a DHS spokesperson said: “To be clear, work authorization or a pending application do NOT confer legal status in the United States.” This is one of those statements that is both true of U.S. immigration law, and, when you think about it for two seconds, makes no actual sense. That is, you can work legally in the U.S. without having legal status here. But work permits are usually tied to your underlying immigration situation: You can get them based on your legal status, another form of protection (like TPS), or having a pending application for one of those things with USCIS.
How long the work permit is valid depends on the reason you’re eligible for it, and when you applied. (We’ve talked a bit about USCIS’ recent actions to reduce the validity of work permits, forcing themselves to adjudicate more renewal applications more often and increasing the risk that people lose their work eligibility while waiting in application backlogs.) And the expiration date printed on your card doesn’t always reflect reality: Your work permit can be automatically extended, or revoked entirely if, for example, your TPS is revoked or terminated.
While immigrants are expected to understand their own situations, employers are also, legally speaking, liable for keeping up with the work authorization of their workforce. When a work permit gets automatically extended, for example, the employer is responsible for literally writing a note on the employee’s I-9 form adding the new expiration date.
While we usually talk about workplace raids as an excuse to round up immigrant employees, employers can also be audited and forced to fire any unauthorized workers — and fined, sanctioned (losing government contracts, for example) or even criminally charged.
This forces employers — often small businesses who can’t afford to keep immigration lawyers on retainer — to keep abreast of developments in immigration law. So you can understand why USCIS’ notifications to E-Verify enrollees would be taken at face value: Employers don’t have the expertise to parse them word by word the way a lawyer would.
So let’s talk about what USCIS is using that power for.
One of the reasons DHS might automatically extend a work permit is if the policy terminating it has since been blocked by a federal judge. That’s what happened with TPS for Haiti. It was set to expire in February, but when a lower-court judge blocked the termination, work permits were automatically valid until that lower-court order was canceled. Similarly, some other TPS holders — including Salvadorans — have work permits that have been auto-extended because of a separate ongoing lawsuit challenging some of USCIS’ recent changes to work permits.
This was the actual substance of what USCIS announced last week. Some Salvadorian TPS holders had work permits with an expiration date before Sept. 9, but USCIS wants their employers to know the work permit is actually valid until then. But USCIS didn’t actually specify in that notification that the Sept. 9 date is itself up in the air, since it hasn’t announced whether it’s terminating Salvadorian TPS. This is consistent with a recent pattern of using E-Verify notifications to make employers think EAD expirations are imminent, even when that may not necessarily be the case.
You might recall that the Supreme Court ruling didn’t automatically end Haitian TPS. First, the ruling had to be formally “enrolled” — that usually happens 30 days after it’s issued. Then, the lower-court judge who had initially ruled the administration couldn’t terminate TPS had to officially file a motion withdrawing her earlier ruling.
In the meantime, though, USCIS used the E-Verify system to tell employers that EADs granted to Haitian TPS holders would be invalid as of July 1 — only a few days after the SCOTUS ruling. Then they issued an expiration date of July 15. Then an expiration date of July 20. This led to tremendous confusion among employers. Every time a new deadline was issued, they panicked — every time it was extended, they felt not only relief but some hope that the administration was going to spare them the pain of actually having to fire the 200,000 or so Haitian TPS holders then in the workforce.
But all of it was actually meaningless. The courts hadn’t finished going through the process that would allow the administration to revoke TPS — which meant that the expiration date for those work permits wasn’t in DHS’ control at all.
Instead of announcing an expiration date it was confident it would be allowed to enforce — say, one in late July or early August — DHS announced an expiration date it knew was unrealistic, and then, as that date approached, extended it to another unrealistic expiration date. At best, the administration was engaging in wishful thinking that the courts would hurry up; at worst, it was setting deadlines it knew it could never enforce.
Trump officials publicly claimed they were being forced to kick the can down the road because federal courts were somehow “defying the Supreme Court” by failing to implement an order that hadn’t officially gone into effect yet. But even the last expiration date they set for Haitian TPS EADs was a few days before the formal withdrawal of the lower-court order.
Employers are in a difficult position here. They would prefer to retain employees, but they also have powerful reasons to err on the side of caution when it comes to potentially violating federal law. Ideally, they’d cross-check USCIS’ announcements with the analysis of outside experts — interest groups like the American Business Immigration Coalition or the organizations involved in the relevant lawsuits like the Asylum Seeker Advocacy Project. But people who are affected by these policies should also be informed enough to help educate a skittish business owner or HR department: USCIS can announce any expiration date it likes, but it may not be setting a date it can actually enforce.
