El Salvador TPS 2026 Alert: Employers Face I-9 Documentation Gap as DHS Delays Formal Guidance

Employers with Salvadoran employees authorized under Temporary Protected Status (TPS) are navigating an unusual compliance gap as of September 2026. El Salvador's TPS designation was scheduled to expire on September 9, 2026, but the Department of Homeland Security failed to publish either a termination or extension notice in the Federal Register by that date, leaving the program's future officially unresolved. USCIS and E-Verify have posted interim guidance confirming that Salvadoran TPS beneficiaries continue to hold valid TPS protections and employment authorization while DHS prepares its formal announcement. However, neither agency has issued updated Form I-9 instructions, new EAD expiration dates, or a Federal Register notice addressing the current limbo period — the documentation employers need to remain legally compliant. The ambiguity carries real legal risk. Under the TPS statute (INA §244(b)(3)), if DHS determines TPS should end, termination cannot take effect earlier than 60 days after Federal Register publication. If DHS fails to make a determination, the designation automatically extends for at least six months. However, as seen with the Honduras TPS termination in July 2025, a delayed announcement does not guarantee an automatic extension outcome. For EB-3 sponsors and employers broadly, the key compliance risk is incorrectly documenting continued work authorization on Form I-9. Experts warn against independently adding six months to an employee's EAD expiration date without official guidance authorizing that approach. Employers should identify affected A12 or C19 category workers now, preserve records of all interim USCIS and E-Verify communications, and monitor the Federal Register closely. Any reverification process must be applied uniformly based on documented expiration dates — not nationality assumptions — to avoid discrimination liability. Employers should consult immigration counsel before taking unilateral I-9 compliance decisions during this unresolved period.