The future of Temporary Protected Status (“TPS”) remains uncertain as the Supreme Court of the United States allows the government to enforce the termination of TPS for Venezuela for those granted status under the 2023 designation. Though the scope of the Supreme Court’s order is limited to the matter of enforcing the termination of TPS for Venezuela, it is indicative of how the Supreme Court may allow for the terminations of other immigration benefits to go into effect while underlying legal challenges are evaluated by the courts. Re
This alert provides background on the history of the termination of Venezuelan TPS for those individuals registered under the 2023 designation, the potential impact of this Supreme Court decision on other immigration benefits programs, the challenges that employers face in ensuring they maintain compliant employment eligibility documents (Form I-9s), and the steps employers can consider taking to ensure a properly authorized workforce.
Background
Venezuela was designated for TPS under the Biden Administration in 2021 and 2023. In the last days of his presidency, former President Biden extended the TPS validity for Venezuelan nationals who received the status under the 2021 or 2023 designations until October 2026.
Shortly after President Trump took office, the January 2025 extension of TPS for Venezuela was rescinded for the population who received TPS benefits under the 2023 designation. A lawsuit was filed in the District Court for the Northern District of California, and the judge issued an order estopping the government from enforcing the termination of TPS for Venezuela. The government appealed to the Ninth Circuit Court of Appeals, who denied the government’s request to overturn the District Court’s order. On May 19, 2025, the Supreme Court of the United States issued an order allowing the termination of the TPS designation for Venezuela to go into effect as the order is litigated before the Ninth Circuit Court of Appeals.
The Supreme Court noted that this order does not preclude Venezuelan nationals who previously filed a TPS renewal and received an approval with an October 2, 2026 expiration date from challenging any action taken by the government to invalidate those documents, citing to 8 U. S. C. §1254a(d)(3), which states that a termination of TPS designation shall only apply to the documentation and authorization issued or renewed after the date of the publication of notice.
What does this mean for other TPS or Parole Programs?
Currently, the Executive Branch has announced changes to TPS eligibility for Haitians, South Sudanese, and Afghans. While not all of the government’s actions have been enjoined at this time, the Supreme Court’s decision pertaining to the 2023 designation of TPS for Venezuelans signals that courts may find it difficult to uphold current nationwide injunctions or issue new injunctions in connection with pending or future TPS-related challenges.
In addition, the status of the parole programs for Cuba, Haiti, Nicaragua, and Venezuela (CHNV), United for Ukraine (U4U), and Deferred Action for Childhood Arrivals (DACA) also may be in limbo, as the Trump administration has made it clear that the termination of these categorical programs is a priority for this administration.
For example, in March 2025, DHS Secretary Kristi Noem released a Federal Register notice terminating the parole programs for Cuba, Haiti, Nicaragua, and Venezuela. The termination of these parole programs was set to take place 30 days after the notice was published, which would’ve left beneficiaries without work authorization as of April 24, 2025. Similar to the case for TPS for Venezuela, the termination of these parole programs was challenged in the District Court for the District of Massachusetts and ultimately blocked by the court, with the First Circuit Court of Appeals denying the governments appeal. On May 8, 2025, the government filed an emergency stay request with the Supreme Court of the United States, for which the Supreme Court has not yet issued a decision. Based on the Supreme Court’s decision to allow the termination of TPS for Venezuela as the termination is litigated in the lower courts, it reasonably follows that we may see a similar allowance of the termination of the CHNV parole programs as they are litigated as well.
While there has been no formal termination of U4U yet, it is possible that the government also may pursue the termination of this program once they are successful in terminating the CHNV parole programs. Further supporting the impending termination of the U4U program, the government has paused processing of U4U applications pending the government’s review and potential termination of the program.
Similarly, there has been no formal termination of the DACA program yet. However, while USCIS will continue to accept and process DACA and accompanying employment authorization renewal requests, they will not process new applications requesting DACA at this time.
What does this mean for employers?
Employers face a difficult challenge in ensuring the maintenance of proper work authorization for foreign employees who are working on non-employer-sponsored statuses, such as TPS. It is clearly established that employers are obligated to reverify work authorization when the relied upon employment authorization document expires – but what are their obligations in situations in which an employee is working pursuant to TPS for a country whose designation is terminated?
The answer in this case is not as clear. While the employer may be subject to civil and even criminal liability if they are found to be employing foreign workers without proper work authorization, the investigation will rely largely on whether the employer had actual or constructive knowledge that the employee was not authorized to work in the U.S. That being said, it is the employer’s responsibility to ensure that all employees are work authorized throughout their entire employment.
In light of these difficulties, we highlight the following practical steps that employers can consider to ensure that they maintain compliance with federal employment laws and I-9 regulations.
Identify the impacted employee population and audit I-9 records to ensure compliance and timely reverification
Conducting an audit of company I-9 records, particularly those relating to employees on non-employer-sponsored statuses, like TPS; CHNV, U4U, and humanitarian parole; and DACA is crucial to ensuring an employer remains compliant with the employment eligibility rules. Where an employer becomes aware of the termination of a TPS designation or other immigration benefits program, the employer must consider whether to update their I-9 records to reflect new expiration dates consistent with the government policy change. We also highlight that employer compliance obligations, or at least risk of findings of non-compliant, may differ depending on if a company is registered with E-Verify, as the government is currently using that system to send email notifications to registered employers indicating that they employer may or may not be employing individuals who no longer have work authorization.
Importantly, a foreign employee has no affirmative obligation to self-report loss of work authorization to the employer, and DHS has not provided clear guidance on whether an employer may request additional evidence of an employee’s continued work authorization prior to the expiration of the work authorization document the employee previously provided. This puts employers in the difficult position of a potential finding of noncompliance, if they decide not to reach out to individuals who may no longer be work-authorized because of the termination of some of these immigration benefits programs—while at the same time running the risk of unfair document practices or allegedly discriminatory conduct if they affirmatively ask individuals they reasonably believe, after reviewing I-9 records, may not have work authorization in the Unite States.
Establish a procedure for giving employees an opportunity to present alternative forms of work authorization
A clear and documented procedure of what a company’s protocol is when learning about a TPS designation’s termination or a similar situation arises to another immigration program may benefit not only the employer, but the impacted employee populations as well. However, ensuring employers have an understanding of the impacted employee population – meaning the population of foreign employees who are not on an employer-sponsored status – is a first step that must be taken. When that population has been identified, sending standardized letters or emails to these employees notifying them of the terminations or policy changes may impact their work authorization puts the employee on notice. It also documents that the employer is taking the appropriate steps to ensure the employee remains work authorized throughout their entire employment. This also provides the employee with the opportunity to seek alternative forms of work authorization and/or status prior to the expiration of their current status.
We also note that taking these steps and notifying employee populations comes with some additional risk. Specifically, the termination of the various TPS or parole programs may lead to workforce shortages. Employees may choose to no longer show up to work if they are fearful of how their employer is treating employees with respect to their work authorization documents, while at the same time the employer’s understanding of their I-9 records and workforce composition may allow for the employer to remediate their workforces in a more orderly manner that does not result in undue disruption to their business.
Conduct regular review of I-9 Central
USCIS provides a helpful tool that includes information on how to complete Form I-9, what constitutes acceptable documentation for I-9 compliance, and other topics that may be helpful for employers. USCIS further compiles any news impacting I-9 compliance on this site – including the terminations or extensions of any TPS designations. As such, this is a valuable resource for employers with employees working pursuant to TPS or any other parole program facing uncertainty under the current administration.
How Klasko can help
Employers looking for guidance on I-9 compliance as it relates to the work authorization of these vulnerable populations should reach out to your team at Klasko Immigration for a consultation to discuss how we can help create a robust I-9 compliance program.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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