The U.S. Supreme Court recently issued two immigration decisions with implications for humanitarian immigration programs, border enforcement and employer compliance. Most notably, the Court’s TPS decision may affect certain employees’ work authorization, making it important for employers to review Form I-9 records, monitor reverification deadlines and avoid assumptions based solely on nationality or immigration status.
The U.S. Supreme Court recently issued two significant immigration decisions that reinforce the federal government's authority over humanitarian immigration programs and border enforcement. While one decision has immediate implications for certain employers, the other reflects a broader shift in the administration of asylum claims at the U.S. border.
Supreme Court Upholds Termination of TPS for Haiti and Syria
On June 25, the U.S. Supreme Court held in Mullin v. Doe (consolidated with Trump v. Miot) that the Department of Homeland Security (DHS) may proceed with terminating Temporary Protected Status (TPS) for nationals of Haiti and Syria. The Court concluded the Immigration and Nationality Act limits judicial review of DHS's TPS determinations, allowing the agency's decision to move forward.
TPS is a temporary humanitarian immigration benefit available to nationals of designated countries experiencing armed conflict, natural disasters or other extraordinary conditions. Individuals granted TPS may receive protection from removal and employment authorization while the designation remains in effect.
What Employers Should Do
Employers with workers who may be employed pursuant to TPS should:
- Identify employees currently working under TPS-based employment authorization.
- Determine whether any affected employees are nationals of Haiti or Syria.
- Review Forms I-9 and applicable employment authorization documents (EADs) to confirm current work authorization and reverification requirements.
- Monitor DHS announcements regarding implementation of the TPS terminations and any automatic EAD extensions or other agency guidance.
Importantly, this decision does not affect TPS designations for other countries, including El Salvador, Lebanon, Ukraine or other currently designated nations. Employers should not assume all TPS beneficiaries are impacted by this ruling.
Likewise, employers should not automatically conclude an affected employee has lost work authorization. Some individuals may possess employment authorization through another immigration status or pending application. Employers should continue to follow standard Form I-9 procedures and verify work authorization based on applicable DHS guidance before taking any employment action.
Supreme Court Clarifies When Asylum Rights Attach at the Border
In Mullin v. Al Otro Lado, also decided on June 25, the Supreme Court held that an individual seeking asylum has not “arrived in the United States” for purposes of the Immigration and Nationality Act until the person has physically entered U.S. territory. As a result, DHS may continue to deny access to asylum processing for individuals who remain outside the United States, including those waiting at ports of entry.
Although this decision has significant implications for asylum seekers and border enforcement, it is unlikely to have an immediate operational impact on most U.S. employers. Rather, it reflects the Court's continued deference to executive authority in administering the nation's immigration laws.
Key Takeaways for Employers
The recent Supreme Court decisions underscore the importance of maintaining proactive immigration compliance practices. Employers should:
- Review their workforce to identify employees working pursuant to TPS or other time-limited employment authorization.
- Carefully monitor EAD expiration dates and Form I-9 reverification deadlines.
- Avoid making assumptions about an employee’s work authorization based solely on nationality or TPS status.
- Consult immigration counsel before taking adverse employment action involving an employee whose immigration status may be affected by recent legal developments.
As immigration policies continue to evolve through agency action and court decisions, employers should remain vigilant in monitoring changes that may affect their workforce. Our Immigration Group will continue to provide updates and guidance as additional developments occur.
If you have questions about how these decisions may affect your workforce or need assistance reviewing employee work authorization, please contact a member of our Immigration Practice Group.
