Temporary Protected Status (TPS) for Sudan and Ukraine was set to expire on October 19, 2026. However, the Department of Homeland Security (DHS) had not published an official decision to extend, redesignate, or terminate either designation, nor had it issued a notice in the Federal Register. The only guidance issued thus far is a USCIS alert regarding Ukraine TPS stating:
- ALERT: An announcement on Ukraine’s TPS will be made at the appropriate time. Until such announcement is made, Ukrainian individuals present in the U.S. under TPS retain protection, including work authorization.
For more than 100,000 TPS beneficiaries and the employers who depend on their authorized workforce, the absence of a formal determination has created significant uncertainty.
What DHS Said and What It Did Not Say
Federal Register notices published in January 2025 extended both TPS designations through October 19, 2026. USCIS guidance has consistently identified that date as the end of TPS validity and the automatic extension period for certain employment authorization document (EAD) renewals. As recently as September, an E-Verify bulletin reiterated the October 19 expiration date for Ukraine TPS.
While the USCIS statement confirms that TPS protections remain in place for the time being, it does not:
- Provide a date for a final decision;
- State whether the designations have been extended and, if so, for how long;
- Update the validity dates for TPS-related Employment Authorization Documents (EADs); or
- Provide Form I-9 or E-Verify guidance for employers.
This is not the first time DHS has taken this approach. Last month, El Salvador’s TPS designation was also scheduled to expire, yet protections remained in place pending a final determination. Ukraine, Sudan, and El Salvador are among the few TPS designations that remain active while the administration has terminated TPS for more than a dozen other countries.
What the TPS Statute Requires
Congress anticipated situations in which DHS does not make a timely TPS determination. Under INA § 244(b)(3) (8 U.S.C. § 1254a(b)(3)), the Secretary of Homeland Security must review country conditions at least 60 days before a designation expires and determine whether the conditions supporting designation continue to exist. For TPS designations expiring on October 19, 2026, that review should have occurred by approximately August 20, 2026.
If the Secretary determines that conditions no longer justify TPS, the designation must be terminated through publication of a Federal Register notice that becomes effective no sooner than 60 days after publication. If the Secretary does not make a timely determination, the statute provides for an automatic extension of the designation for an additional six months, or longer at the Secretary’s discretion.
Applied here, the absence of a published determination suggests that TPS for both Ukraine and Sudan may be automatically extended through at least April 19, 2027. That interpretation is consistent with DHS’s statement that beneficiaries continue to retain TPS protections.
Two important caveats remain. First, DHS has not expressly stated that it is relying on the statutory automatic-extension provision and could still publish a termination notice. If it does, the statute’s minimum 60-day notice period should apply. Second, while the statute may extend the TPS designation itself, it does not automatically update expiration dates on related immigration documents. That disconnect is where many employers are encountering compliance concerns.
What This Means for Employer Compliance
Many employers have Ukrainian or Sudanese TPS beneficiaries whose EADs, issued under categories A12 or C19, reflect an October 19, 2026 expiration date or were automatically extended through that date. Under ordinary Form I-9 rules, reverification obligations would arise at that time. However, DHS has publicly stated that TPS protections remain in place, even though no Federal Register notice or employer-focused guidance has yet been issued.
As a result, employers face competing compliance concerns:
- Unauthorized employment. Continuing employment without clear documentation of work authorization can create questions during a Form I-9 audit.
- Discrimination and document abuse. Suspending, terminating, or demanding specific documents from TPS beneficiaries whom DHS has stated remain work-authorized could raise concerns under the anti-discrimination provisions of INA § 274B, enforced by the Department of Justice’s Immigrant and Employee Rights Section.
Under the current circumstances, employers may face greater immediate exposure by taking adverse action against workers whom DHS has publicly stated remain protected and authorized to work. DHS’s statement and the statutory framework both point toward the continuation of TPS protections pending further action.
E-Verify users should note that E-Verify does not handle reverification obligations, which remain a Form I-9 responsibility. Employers should closely monitor for updated guidance from DHS, USCIS, and E-Verify, which typically follows publication of a Federal Register notice.
Practical Steps for Employers
Employers with affected workers should consider the following actions:
- Identify all Ukrainian and Sudanese TPS beneficiaries whose Form I-9 records reflect an October 19, 2026 expiration date.
- Avoid suspending, terminating, or placing employees on leave solely because that date has passed.
- Create a dated memorandum for each affected Form I-9 documenting DHS’s statement and the absence of a Federal Register notice as of the date of review.
- Do not require employees to present any particular document. Employees may choose which acceptable List A or List C documentation to provide during reverification.
- Monitor Federal Register notices and USCIS TPS announcements on a daily basis for further guidance.
- Consult immigration counsel before taking any adverse employment action affecting Temporary Protected Status beneficiaries.
The Bottom Line
The absence of a formal Federal Register notice leaves employers without the clear guidance they typically rely upon for Form I-9 and employment verification compliance. Based on DHS’s public statement and the statutory framework governing Temporary Protected Status designations, Ukrainian and Sudanese TPS beneficiaries appear to remain protected and authorized to work while DHS determines its next steps. Employers should carefully document their compliance efforts, avoid premature adverse employment actions, and closely monitor DHS, USCIS, and Federal Register updates for additional guidance.
We will continue to monitor developments and provide updates on Temporary Protected Status as additional information becomes available.
Hector A. Chichoni is a business and corporate immigration attorney with 30 years of experience advising employers on workforce compliance.
This publication is provided by Greenspoon Marder LLP is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.
