Immigration Options for Ukrainians
***UPDATE EFFECTIVE 03/01/2022 Very exciting update! The Biden Administration has authorized Temporary Protected Status for Ukraine today for anyone who was present in the United States on March 1, 2022. It will be for a period of 18 months. Eligible persons, approximately 75,000 Ukrainians in the US, will be able to stay in the United States with a work permit who would otherwise be present without any status at all.
Not only is this valuable humanitarian relief, but it sends a message to the world about the gravity of human rights violations that are occurring with the Russian invasion.
I hope this information is helpful to those of you who know Ukrainians in need of status in the US. Even those with prior deportation orders can apply. ****
As the attack by Russia on Ukraine intensifies, our immigration practice group at Vanderpool Frostick & Nishanian, PC is getting a lot of calls about what kind of immigration relief is available to Ukrainians at the present time. Despite the horror of the situation unfolding, the United States has yet to take immigration-related action to establish a specific protection program for Ukrainians inside or outside the United States and is currently only providing emergency aid. However, there are existing possibilities of relief for Ukrainians in the United States.
POSSIBLE RELIEF FOR UKRAINIANS INSIDE THE UNITED STATES:
TEMPORARY PROTECTED STATUS (TPS) FOR UKRAINE (NOT DESIGNATED YET): Watch the news carefully to see if the Department of Homeland Security Secretary announces TPS for Ukraine. This option would make the most logical sense for Ukrainians who are in the United States without status or who are at risk of their current status expiring. TPS is a designation by the United States for citizens of a country that is experiencing or has experienced a significant humanitarian disaster such as war, earthquakes, hurricanes, and any other circumstance that prevents the country’s nationals from returning safely to their home country. TPS is usually designated for 6, 12, or 18 months and qualifies the recipient, who is present in the United States on the day of the designation, for an employment authorization document.
EXTENSION OF CURRENT STATUS: If a Ukrainian is in the United States on a non-immigrant visa, such as a work, student, or tourist visa, he or she can file USCIS form I 539 to extend status. It is critical to file this form before the current status expires. While waiting for an extension of status, if the visa is about to expire, it may be valuable to go to the deferred inspection unit at Dulles Airport to request an extension of stay in the United States based on no or limited flight availability to Ukraine.
ASYLUM: Asylum might seem like an obvious choice in a situation like what we see in Ukraine, and it could be, but with some cautionary notes. To obtain asylum, a person must be outside his or her country of nationality and have suffered past persecution or have a well-founded fear of future persecution on account of one or more five protected grounds: religion, race, nationality, political opinion, or membership in a particular social group. The applicant must demonstrate that the government is unable or unwilling to control the persecution and that there is nowhere in the country where the person can safely reside.
The key to asylum is showing that the government itself is engaged in the persecution or that it is an individual or group that the government is unable or unwilling to control. In the current conflict, it is not the Ukrainian government persecuting its own people, it is an outside group, and, as stated before, it is about generalized violence. That said, if a Ukrainian is afraid of returning to Ukraine, then serious consideration should be given to filing an asylum claim with the caveat that if the case loses with the asylum office, the person will be placed into removal proceedings and the case referred to an immigration judge. If a person fails to file for asylum within one year of being in the United States, such person will be referred to an immigration judge.
Final notes on asylum: Asylum applicants are eligible for employment authorization. And, further, when considering filing asylum remember that there are many possible grounds other than those that may be related to the current conflict, such as some other social group like LGBT+, a particular religion or race for which there was or could be future persecution.
ADJUSTING STATUS: If a Ukrainian national is in the United States with a lawful entry, then he or she may qualify to adjust their status through an immediate family member who is a lawful permanent resident or United States, citizen. Many factors influence whether a person can adjust status, including whether there is any accrual of unlawful presence or working without authorization, along with consideration of any criminal record. If a person is in current legal status he or she may be able to apply for a work-related visa.
There are many other avenues of relief (not specific to Ukrainians) available to non-immigrants or those persons in the United States who are out of status. Any Ukrainian in the United States who is out of status or at risk of losing status should immediately seek assistance from a qualified immigration lawyer.
INFORMATION FOR UKRAINIANS OUTSIDE THE UNITED STATES:
As released by the Department of State on March 1, 2022, the U.S. Mission to Ukraine is not currently offering visa services to Ukrainians. Immigrant visas (other than adoption) are being processed at the Consulate General Frankfurt, including diversity visas and fiancé (K-1) visas. Nonimmigrant visas (such as tourist visas) can be processed wherever a Ukrainian national is physically located and an appointment can be scheduled. Currently, the United States has not waived visa requirements for Ukrainians, which will cause a delay in being able to come to the United States. US embassy websites are available at https://www.usembassy.gov.
Over 800,000 Ukrainians have already left Ukraine as of March 2, 2022. Poland, Slovakia, Hungary, Moldova, and Romania have received the most refugees and Ireland has dropped its visa requirement for Ukrainians. Ukrainians are eligible to travel to 140 countries without visas, including to the Schengen Zone, provided they have biometric passports. UNHCR has established aid and support in neighboring countries.
Traffic lines are many kilometers long at border crossings and persons traveling should have phone batteries, food and water for at least two days, diapers and baby food, warm clothes and blankets, and most importantly hard copies of all important documents: birth certificates, passports, marriage certificates, and other legal documentation.
FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:
Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association. If you have additional questions or concerns contact Lisa Shea at firstname.lastname@example.org or call us at 703-335-2009.
This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer