The Biden Administration’s dual designation of Venezuela for Temporary Protected Status (TPS) in 2021 and 2023 created a complex legal landscape for employers and Venezuelan nationals alike. While the 2023 redesignation was terminated earlier this year, the original 2021 Venezuela TPS designation remains in effect—but only until September 10, 2025, unless extended by the Department of Homeland Security (DHS).
For U.S. employers, the looming expiration has created serious compliance concerns, especially regarding work authorization verification under Form I-9 requirements. In this blog, we provide guidance on the current status of the 2021 designation, key dates, and how employers should proceed.
TPS Overview: Authorization Through Status, But Proof Through Documents
TPS grants temporary lawful presence and the ability to apply for employment authorization to certain nationals of designated countries. While beneficiaries are considered “authorized to work” by virtue of their TPS status, actual proof of work authorization must come in the form of a valid Employment Authorization Document (EAD).
Important: A beneficiary may remain in lawful TPS status but still lack valid proof of work authorization if their EAD has expired and no automatic extension applies.
Status of Venezuela TPS 2021 Designation
- Expiration Date: September 10, 2025
- DHS Action Deadline: July 12, 2025 (60 days prior per INA §244(b)(3))
- DHS Action Taken?: No official action announced as of now
Under the statute, if DHS fails to act 60 days before the expiration, TPS is automatically extended for six months. However, DHS has not confirmed this auto-extension in the Federal Register for Venezuela. Without an explicit notice, this creates risk and ambiguity.
Work Authorization: Can 2021 TPS Beneficiaries Still Work?
Only if their EAD is facially valid through September 10, 2025 or was automatically extended under the 540-day rule.
| Expiration on EAD | Valid Through | Notes |
|---|---|---|
| 09/10/2025 | 09/10/2025 | Card is valid; no extension required. |
| 03/10/2024 | 09/01/2025 | If I-765 was filed by reregistration deadline, 540-day rule applies. |
| 09/09/2022 | 09/10/2025 | Only if new EAD was issued with updated expiration. |
If your employee presents an expired card without an applicable automatic extension, they are not authorized to work—even if they still hold valid TPS.
Employer Advisory: Letters from Immigration Counsel Citing Automatic Extension
Many employers are receiving letters from employees’ attorneys asserting that the failure of DHS to act by July 12 automatically extends both TPS and employment authorization. While this argument is rooted in INA §244(b)(3)(C), it is not currently supported by any formal DHS or USCIS announcement for Venezuela.
Employers should proceed with extreme caution:
- The USCIS has not extended EADs related to the 2021 designation.
- Accepting expired EADs not explicitly covered by automatic extensions could violate I-9 regulations.
- Continuing to employ someone without a valid work authorization document may result in civil or criminal penalties.
Compliance Tips for Employers
- Request updated EADs: If an employee’s current EAD does not show a valid expiration date or automatic extension, they must apply for a new one to continue working.
- Do not rely on assumption-based automatic extensions: Unless clearly stated in the Federal Register or USCIS policy, silent extensions carry risk.
- Document all I-9 decisions: Maintain a paper trail showing your compliance with federal verification requirements.
- Consult counsel: If faced with letters from an employee’s attorney claiming extended authorization, seek your own legal review to assess exposure.
Looking Ahead: Will the 2021 TPS Be Extended?
The statutory deadline for DHS to act has passed. If no action is taken, the TPS designation should be extended by law. However, unless or until USCIS officially confirms an extension and publishes related EAD policies, employers must not assume that TPS beneficiaries remain authorized to work beyond September 10, 2025.
This is an evolving situation with ongoing litigation and high stakes for compliance. Ahluwalia Law Offices continues to monitor updates from DHS and USCIS and will provide immediate guidance if the status of the 2021 designation changes.
