• Rules for Using a TPS-Related EAD While Holding a Valid Nonimmigrant Status
  • January 6, 2016 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • Introduction

    An alien who is granted temporary protected status (TPS) may obtain an Employment Authorization Document (EAD) along with TPS. Furthermore, he or she may maintain a valid nonimmigrant status along with TPS. Certain nonimmigrant statuses limit or outright prohibit the employment that the nonimmigrant may engage in while on status. This leaves open the question of whether an alien may work based off his or her employment authorization from TPS and maintain a valid nonimmigrant status that would not allow that employment.

    Using a TPS-Related EAD Affects Nonimmigrant Status that Limits or Prohibits Employment

    A United States Citizenship and Immigration Services (USCIS) FAQ[1] addressed the following question:

    “Can someone with a non-immigrant status (e.g. F-1, B-2, etc.) apply for TPS? If so, will having or using a TPS-related EAD affect his or her status?”

    As we explained in the introduction, an alien holding a valid nonimmigrant status may obtain TPS if he or she is eligible.

    USCIS answered the second question as follows:

    “The individual can continue to hold both statuses, as long as he or she remains eligible for both.”

    USCIS further explained:

    “Receiving TPS or a TPS-related EAD does not alter any rules limiting employment for certain nonimmigrants, such as F-1 students or B-2 visitors. Before someone holding both nonimmigrant status and TPS chooses to work using a TPS-related EAD, he or she should carefully consider whether that employment could violate the terms of the nonimmigrant status...”

    In short, while a person may obtain a TPS-related EAD regardless of whether he or she holds a nonimmigrant status that limits or prohibits employment, that fact does not change any requirements for the nonimmigrant status. For example, if a B-2 visitor with TPS were to engage in employment using a TPS-related EAD, he or she would be considered to have violated the B-2 status.

    Conclusion

    Under USCIS’s current interpretation of the TPS rules, an alien holding TPS and a valid nonimmigrant status that limits or prohibits employment will be considered to have violated his or her nonimmigrant status if he or she uses a TPS-related EAD to engage in employment that is authorized by the EAD, but not under the nonimmigrant status.

    A person holding TPS and a valid nonimmigrant status should consult with an experienced immigration attorney for guidance on whether accepting employment using the TPS-related EAD would conflict with his or her nonimmigrant status. This will always depend on the rules of the nonimmigrant status in question.
    1. USCIS, FAQs: Statelessness and the Ability to Work for Joint F-1/TPS, published on AILA InfoNet at Doc. No. 15090306 (Posted on September 3, 2015)