Updated May 16, 2022 to reflect implementation of the Uniting for Ukraine program.
For Ukrainian nationals fleeing the current conflict, there are several immigration options for entering the U.S. in a legal status:
- Temporary Protected Status
- Immigrant Visa Based on U.S. Immediate Relative Filing
- Nonimmigrant Visitor Visa
- Uniting for Ukraine (U4U)
1. Temporary Protected Status
On March 3, 2022 U.S. Department of Homeland Security (DHS) announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months. The designation and the TPS period may be extended in the future. On April 18th, 2022 the TPS eligibility period was expanded by the Biden administration. To be eligible for TPS under the new guidelines, a Ukraine national must have continuously been in the United States since April 11, 2022. Individuals who attempt to travel to the U.S. after April 11, 2022 will not be eligible for TPS. Ukraine’s 18-month TPS designation will go in effect on the publication date of the upcoming Federal Register notice. The Federal Register notice will provide for applying for TPS and an Employment Authorization Document (EAD).
TPS applicants must meet all eligibility requirements and undergo security and background checks. The Form I-821 Application for Temporary Protected Status would be utilized to file for TPS, as well as Form I-765 Application for Employment Authorization Document to file for work authorization. TPS will allow the Ukrainian applicants to remain legally in the United States for the duration of 18 months and allow for work authorization, as well as a Social Security Number. TPS does not immediately lead to a permanent residence and not everyone will be eligible. Some exceptions are the physical presence requirement of April 11, 2022 and the lack of criminal record.
The mere fact of the ongoing war does not allow for an immediate claim to an asylum. The foreign nationals may apply for an asylum if they can demonstrate credible and well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. This well-founded fear of persecution must be based on past persecution or risk of persecution in the future, if he/she/they return to the country of origin, where the persecutor is a government actor and/or a non-governmental actor that the government is unwilling or unable to control. In the case of Ukraine, the credible fear of persecution may be based on one’s nationality and the ongoing genocide of Ukrainians and the Ukrainian government’s inability to control/protect.
To file for an affirmative asylum, one must file Form I-589 Application for Asylum and for Withholding of Removal and all the relevant supporting documentation to demonstrate that credible fear of persecution. An asylum application may apply for employment authorization (EAD) Form I-765 after his/her/their asylum application has been pending for over 150 days with USCIS. The asylum applicants are no longer required to pay the $85 biometrics filing fee with their I-765 EAD applications.
3. Immigrant Visa Based on U.S. Immediate Relative Filing
Some of the Ukrainian nationals might have immediate relatives in the U.S. The immediate relative category that allows for immigrant visas without long waiting periods are: spouses of U.S. citizens, parents of U.S. citizens and children under the age of 21 of U.S. citizens. Once the U.S. citizen relative files an I-130 Petition for Alien Relative on behalf of their immediate relative, USCIS will receipt the case and issue the I-797 Receipt Notice. Once the receipt notice has been received, the U.S. citizen relative should reach out to his/her/their Congressional office, specifically a congressional immigration liaison to facilitate expedite processing in the case. Depending on where the Ukrainian immediate relative is residing at the time, he/she/they will be processed through that country’s U.S. Embassy consular post.
4. Nonimmigrant Visitor Visa
If the Ukrainian national has managed to flee the country, and is located in a neighboring country such as Poland, Romania, Slovakia or Hungary, he/she/they may attempt to apply for a B-2 visitor visa at that country’s U.S. Embassy consular post, as long as there are ties to the U.S., such as a relative or close friend. These B-2 visas are hard to secure due to a non-immigrant intent, and many get denied, coupled with extensive interview backlogs and waiting periods.
5. Uniting for Ukraine (U4U)
On April 21, 2022 Biden Administration announced the implementation of the Uniting for Ukraine (U4U) program, which would provide a pathway for Ukrainian nationals and their immediate family members who are outside the United States to come to the U.S. and stay temporarily in a two-year period of parole. U.S.-based individuals and entities may now apply through DHS to sponsor Ukrainian citizens who have been displaced by Russia’s aggression. Any U.S. citizen or individual, including representatives of non-government organizations, can sponsor Ukrainian applicants. Individuals and organizations seeking to sponsor Ukrainian citizens in the United States will be required to declare their financial support and pass security background checks to protect against exploitation and abuse. The first step in the U4U process is for the U.S.-based supporter to file Form I-134 Declaration of Financial Support with USCIS. The U.S. government will then vet the supporter to ensure that they are able to financially support the individual whom they agree to support. Eligibility requirements for Ukrainian nationals will include required vaccinations and other public health requirements, as well as biographic and biometric screening, vetting, and security checks.
United States strongly encourages Ukrainians seeking refuge in the United States, who do not have and are not eligible for a visa, to seek entry via Uniting for Ukraine from Europe, with this being the safest and most efficient way to pursue temporary refuge in the United States. The U.S. government is working with European partners to ensure Ukrainians can meet the vaccination requirements of Uniting for Ukraine.
Ukrainians should not travel to Mexico to pursue entry into the United States. Following the launch of U4U, Ukrainians who present at land U.S. ports of entry without a valid visa or without pre-authorization to travel to the United States through Uniting for Ukraine will be denied entry and referred to apply through this program.
The Batrakova Law Office is here to help.
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