In addition to the 3.2 million Ukrainians who have fled Ukraine, the United Nations reports that there are more than 6.5 million Ukrainians internally displaced within the country. The United States’ policies and practices with respect to inbound immigration options continue to evolve as the situation in Ukraine changes. This article outlines current inbound-U.S. immigration options.
Options for Ukrainians Present in the United States
- Extension of Stay or Change of Status
Ukrainians who are already physically present in the U.S. as visitors or in some other nonimmigrant visa category may be eligible to extend or change their status in the country if they meet certain eligibility requirements for taking such steps. For example, an individual who originally entered the country as a business visitor may, some months later, qualify for a change of status to that of a nonimmigrant temporary worker.
Ukrainians in the U.S. with approved immigrant visa petitions who previously planned to obtain immigrant visas from the U.S. consulate in their home country may be able to change their request from immigrant visa processing outside of the U.S. to that of applying for adjustment of status to permanent residence, a process accomplished within the U.S. If a foreign national wishes to extend their stay, change status or apply for adjustment of status in the U.S., that individual should seek legal advice to ensure they are eligible for the proposed benefit.
- Temporary Protected Status
On March 3, 2022, the U.S. Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. In the announcement, the agency stated: “[A] country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Ukraine that prevent Ukrainian nationals, and those of no nationality who last habitually resided in Ukraine, from returning to Ukraine safely.” Among other eligibility requirements, individuals must have continuously resided in the U.S. since March 1, 2022 to be eligible for TPS under this designation. The 18-month designation will go into effect when published in an upcoming Federal Register notice. The notice will provide instructions for applying for TPS and employment authorization. As of the date of this article, the Federal Register notice has not yet been published.
- Asylum Applications
Ukrainian nationals in the U.S. or at the border may consider applying for asylum in the U.S. A Ukrainian national seeking asylum may either: 1) express fear of return to the home country at the U.S. border, pass a credible fear interview and make the case for asylum in deportation proceedings; or 2) enter the U.S. following the normal inspection and admission process at the border and affirmatively apply for asylum following admission, enter without inspection and apply affirmatively, or claim asylum in a deportation proceeding. In most cases, the foreign national must apply for asylum within one year of entry to the U.S.
To qualify, the foreign national must demonstrate that they meet the following: “Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” There are anecdotal reports of both Russians and Ukrainians traveling to Mexico and applying for asylum at U.S. border posts. Those reports indicate that some have been granted humanitarian parole in the U.S. for a period of one year.
Options for Ukrainians Outside of the United States
- U.S. Department of State’s Addition of Ukrainians as a Homeless Nationality Supports Ongoing Immigrant Visa Processing
On March 2, 2022, Ukrainians were formally added to the U.S. State Department’s list of Homeless Nationalities. A homeless visa applicant is someone who is a national of a country in which the U.S. has no consular representation, or which the political or security situation is tenuous or uncertain enough that the limited consular staff is not authorized to process immigrant visa (IV) applications. In adding Ukrainian nationals to the list, the State Department designated Frankfurt as the primary post for immigrant visa processing for all but adoption cases. Adoption cases have been assigned to Warsaw. Ukrainians in other countries may ask IV posts to accept their cases for processing.
The Homeless Nationality designation does not apply to nonimmigrant visa processing for individuals seeking to come to the U.S. temporarily as a visitor, student, or worker. Rather, it allows Ukrainian nationals to continue their immigrant visa journey, whether family- or employment-based, to the U.S. despite conditions in their home country. Unfortunately, the wait for all visa processing remains very long due to the COVID 19 pandemic which played a key role in shuttering U.S. consulates worldwide during 2020 and 2021.
- Standard Nonimmigrant Visa Options for Ukrainians
At the time of publication, the U.S. embassy and consular services have suspended operations in Kyiv. Ukrainian nationals who have planned to come to the U.S. on a temporary, nonimmigrant visa to visit, attend school, or work may be able to attend visa interviews at other U.S. consulates where they are able to schedule an appointment.
While some nonimmigrant visas such as visitor, student and exchange visitor visas can be presented in the first instance at a U.S. consular post outside of the U.S., many visas, particularly those in the employment-based categories, first require the filing of a petition with U.S. Citizenship and Immigration Services (USCIS) in the U.S. – and approval of the petition – before the foreign national can apply for a visa at a U.S. consulate abroad. Only after the visa has been issued and placed in the individual’s passport can the foreign national travel to the U.S. and seek admission. The overall process can take months, even in the best of times, and eligibility requirements can be difficult to meet. For example, a visitor visa applicant must be able to demonstrate: 1) they have a residence in a foreign country that they do not intend to abandon; 2) they intend to be in the U.S. for a specific, temporary time period; and 3) they seek admission to engage only in legitimate tourist or business visitor activities. With their country at war, Ukrainian visitor visa applications are reportedly being denied because individuals are unable to prove they have a residence in Ukraine that they do not intend to abandon or are unable to prove that they plan to be in the U.S. for a temporary period.
In addition to challenges with visa eligibility, there are practical issues with obtaining visa appointments in many countries around the world. The U.S. Department of State, which oversees the visa appointment and scheduling process, is severely backlogged. Applicants who attempt to make a nonimmigrant visa appointment may see months-long wait times depending on the consulate at which they apply.
Ukrainian nationals may qualify for refugee status while they remain outside of the U.S. Under the current framework, individuals applying for refugee status must receive a referral from the United Nations High Commissioner for Refugees (UNHCR) to the U.S. Refugee Admissions Program for consideration as a refugee coming to the United States. The initial processing and approval occur while the foreign national remains outside the United States and can take years to complete. Generally, the U.S. will consider an individual for refugee status if the person:
- Is located outside of the United States.
- Is of special humanitarian concern to the United States.
- Demonstrates that they were persecuted or fear persecution due to race, religion, nationality, political opinion or membership in a particular social group.
- Is not firmly resettled in another country.
- Is admissible to the United States.
- Humanitarian Parole
Parole allows an individual who may be inadmissible or ineligible for admission into the U.S. to be in the U.S. for a temporary period. Applicants must demonstrate a compelling emergency and that there is an urgent humanitarian reason or significant public benefit to allowing them to temporarily enter the U.S. Applicants file a form, supporting evidence of their need for parole — along with a fee — and the Department of Homeland Security (DHS) then reviews these applications on a case-by-case basis. There are currently thousands of parole applications pending with the DHS, so this option will not provide immediate relief. Additionally, many humanitarian parole applications are denied, even with very sympathetic factors, as the U.S. government does not want applicants to use humanitarian parole as a substitute for other immigration avenues, including refugee status or normal visa-issuing procedures.
The Russian invasion of Ukraine has turned a spotlight on U.S. immigration and its challenges in dealing with urgent humanitarian crises. Governments around the world, including the U.S., are stepping up their efforts to assist refugees and the bordering host countries accepting them. Faegre Drinker’s immigration and global mobility team is monitoring developments and providing updates through our Navigating the Ukraine Crisis resource center. We welcome clients and attorneys with immigration questions to contact our team to help determine what options may be available.