Over a few days, more than one million Ukrainians have fled their country, heading westward as refugees from Putin’s war on Ukraine.
The Biden administration is facing mounting pressure from lawmakers and advocates to allow thousands of Ukrainians who are temporarily working or studying in the United States to remain, rather than force them to return to their war-torn country. Many people have contacted our law firm to find out what can be done for their Ukrainian family members, friends, or employees. We will outline some options in this newsletter.
So, what are Ukrainians’ Immigration Options?
There are short-term measures and long-term measures that need to be considered and this situation is especially tricky as the U.S. embassy in Kiev has closed and suspended all visa issuance operations.
o Employment-Based Options
Employment-based visas are available for Ukrainian nationals, such as the H-1B visa, L-1, etc. If you are an employer who needs certain degreed positions (such as in IT, engineering, etc.) and you wish to help by offering positions and visa sponsorships to Ukrainian nationals in need, please contact our office at email@example.com with the job description(s) you have a need for.
o Investor Visas
Some Ukrainians with the financial means to start a business in the U.S. may qualify for an investor visa. Generally, the investor must invest substantially in a new U.S. company or buy an existing business. The enterprise must not be marginal but make or has the capacity to make an economic impact. Normally it requires an investment of $100,000 or more (although in some cases, lesser investments have been considered), and it must generate more than a minimal income for the investor. The money has to be put at risk, and the business must maintain ownership of over 50% Ukrainian nationals.
o Family Visas
Ukrainians with spouses, children under 21, and parents that are in the U.S. as citizens or lawful permanent residents may be eligible to obtain immediate humanitarian assistance. The U.S. embassy in Poland and Germany, among others in Eastern Europe, has issued guidance on how to expedite these visas, and in some limited and special circumstances, they may even allow people to apply directly to the U.S. embassy. These visas normally take years to complete and require processing by U.S. agencies before even reaching a U.S. embassy or consulate. The crisis in Ukraine, however, has prompted the U.S. to expedite these visas for humanitarian reasons as millions flee Ukraine.
o Refugee and Asylum Claims
Even though some Ukrainians may qualify for Refugee status under U.S. immigration laws, Refugee status is only available for people outside the United States seeking to gain entry here. Normally, only the country where the person is located can consider a refugee request. Gaining refugee status abroad may take years for the U.S. government to process.
Once a person can get to the USA; however, they can make an asylum claim. But even then, merely escaping a war-torn country does not amount to grounds for an asylum claim just by being Ukrainian.
The legal requirement for asylees is that they must be outside their country of nationality and have a well-founded fear of persecution based on traditional grounds such as race, religion, political opinion, etc. One would have to show membership in a sub-group targeted to be persecuted on one of the grounds mentioned. An example might be gay people in Russia where homosexuality is not tolerated. One other example might be political opposition to the occupying government of Russia. However, experience with asylum claims suggests that this should only be a remedy of last resort.
Short Term Measures
For Ukrainians currently in Eastern Europe, in the absence of a special program for them, coming to the USA requires obtaining a visitor visa. B-1/B-2 visas require an interview with an officer at a U.S. consulate. Applications for such visas by Ukrainians are currently being expedited by Consulates in Eastern Europe. The U.S. embassies of Eastern Europe have allowed people to select a special appointment category for an expedited interview. The challenge for such applicants is, however, the need to show that the proposed visit will only be temporary, and that the applicant has a home he or she does not intend to abandon since the entry is usually limited to six months. The U.S. embassies have indicated these requirements may not be as strict for Ukrainian nationals, but it remains a requirement. It is conceivable that the applicant can establish an intention to stay temporarily by indicating a desire to return home after things settle, albeit that there is uncertainty as to how long the turmoil will last. If the applicant can show support from American family or friends by way of letters of support, that will strengthen the prospects for approvals. Applicants will need to go through a security screen as well as show they have a clean immigration record in the past.
Ukrainians may also be eligible to apply for humanitarian parole, which is a discretionary authority given to DHS to allow an individual to enter, return to, or remain in the U.S. without granting permanent residence status. Parole is typically given for a temporary period but may be renewed if necessary. Humanitarian parole is given for reasons of urgent humanitarian need, such as to receive medical treatment, family reunification purposes, or because of living circumstances that make an individual particularly vulnerable. Ukrainians with family in the U.S., and who suffer from medical ailments may be particularly interested in applying for parole. Having family, friends, or business partners in the U.S. is also helpful, as Ukrainian applicants will have to show the existence of a sponsor who can provide financial support while in the U.S. While prior immigration violations and criminal history is considered, a person who has them may still be eligible to obtain parole despite not being eligible for a visa or permanent status. Ukrainians who can demonstrate their need to enter the U.S. due to some vulnerability if forced to remain in Ukraine, should consider applying for humanitarian parole.
Temporary Protected Status
The Biden administration just announced TPS today, March 3, 2022. TPS is a short term measure that can help provide Ukrainians in America with Temporary Protected Status. This just announced form of protection will help about 34,000 Ukrainian nationals estimated to be inside the U.S. today. Temporary Protected Status (TPS)—a form of immigration status provided to people of certain countries experiencing temporary conditions that make it difficult or unsafe to return—is a lifeline to those thousands of Ukrainians already in the United States. The Biden Administration accordingly is not offering Temporary Protected Status to Ukrainians who are on short-term visas or have no documentation. The protection would not confer permanent residence but would enable them to remain in the U.S. without fear of deportation and enable them to legally work.
DHS Secretary has the authority to extend TPS to citizens of countries where armed conflict, natural disaster or other extraordinary circumstances prevent their safe return home. TPS is now available to Ukrainians that have been residing in the U.S. since March 1, 2022, and it is important to register quickly before the registration period closes.
More than 400,000 people are currently under such protections, including immigrants from El Salvador, Haiti, Sudan, Syria, and Venezuela. The protection is granted for six to 18 months, and DHS must extend a country’s designation on a recurring basis. Each time a country is recertified, recipients must reapply and pass a background check.
The crisis in Ukraine is set to become Europe’s worst humanitarian crisis of this century, matching the refugee numbers of Syria, Iraq, and Afghanistan in 2015. If fighting were to continue, the U.N. High Commissioner for Refugees reports as much as 10 percent of Ukrainians may be forced to flee their country.
Ukrainians have seen historical support from the international community, with never-before-seen sanctions placed on Russia, to normally neutral countries joining forces to provide military aid, to immigration lawyers in the U.S., such as those at Weinstock Immigration Lawyers, coming together to help those needing to leave. As many people remain in Ukraine to fight against the Russian invasion, those needing to flee should know there are viable options to find safety in the U.S.