Jane Waterman-Joyce

With the recent humanitarian crises and armed conflicts in Ukraine and Afghanistan, refugee issues currently dominate the news cycles. Families and friends of those who have fled these conflicts are anxiously waiting to hear how they can be reunited with their loved ones and if those loved ones will be able to enter – or remain – here in the U.S. Similarly, ministry organizations who have foreign national employees or volunteers who they are trying to help, or who have affiliate entities in either or both countries with staff or volunteers they are trying to assist, may be actively looking for options. Depending on where individuals are located, there may be a potential solution.

Individuals Outside the U.S.

Individuals who fled their home country to non-U.S. nations face an uphill battle to obtain a U.S. visa. Consulates across Europe are not issuing B-1/B-2 tourist visas to Ukrainian citizens, even if individuals swear that they will return to Ukraine at the cessation of the conflict and do not intend to remain in the U.S.

On March 24, 2022, President Biden announced that the United States would welcome up to 100,000 Ukrainian refugees through a variety of immigration avenues, including official refugee status and “humanitarian parole,” which allows individuals who would not otherwise be able to obtain a visa to come to the U.S. for humanitarian reasons. Currently, the U.S. government is processing tens of thousands of refugee and humanitarian parole applications for Afghan citizens as part of “Operation Allies Welcome.” It remains to be seen whether Ukrainian humanitarian parole applications would be processed after these currently-pending Afghan applications or if there will be an expedited application process.

Obtaining refugee status can be a long and drawn out process because the Immigration and Nationality Act prescribes a narrow legal definition for who qualifies as a refugee. The applicant must be invited to apply and then go through a consular interview and evidence collection process. Refugee status is determined on a case-by-case basis, rather than granted to a class of persons. However, if an individual is admitted to the U.S. as a refugee, the individual can apply for a green card after one year, creating a streamlined path to permanent residency and citizenship.

In contrast, those who receive humanitarian parole will have a shorter process to come to the U.S. but will receive fewer benefits. Humanitarian parole on its own does not provide a path to permanent residency or citizenship. Individuals who enter the U.S. through humanitarian parole would need to be eligible for permanent residency or citizenship through either family-based or employment-based immigration. However, humanitarian parole does permit individuals to apply for work authorization, allowing them to live and work legally for the duration of their stay. Work authorization is not a guarantee with humanitarian parole, and parolees may need to have a sponsor to support them during their time in the U.S.

As President Biden has not yet announced the procedure for selecting these 100,000 Ukrainians, those who have employees, volunteers, or loved ones outside of the U.S. can only wait for the announcement and zealously advocate for clear and decisive action in bringing these individuals to the U.S.

Individuals Within the U.S.

For those who managed to arrive in the U.S. before the conflict, Temporary Protected Status (“TPS”) is a protection against deportation for foreign citizens who may not have legal status or are worried about losing legal status. Similar to humanitarian parole, TPS on its own does not confer any immigration benefit or path to permanent residency, but it prevents individuals from being removed from the U.S. and sent back to their home countries during active conflict, unrest, or natural disasters.

Like humanitarian parole, TPS allows individuals to file for work authorization. Having work authorization permits individuals with TPS to live and work legally in the United States, allowing them to obtain a driver’s license and social security card. TPS holders may also be approved for a travel document, so they may travel in and out of the U.S. without losing status. TPS also does not prevent an individual from later applying for an immigrant or nonimmigrant visa, provided the individual qualifies for that specific visa.

Although each initial TPS grant lasts for 18 months, the Department of Homeland Security often extends the grant in 18-month increments, depending on whether the individual’s home county remains in crisis. Extensions can often be tricky for both employers and individuals to navigate, as they are often done by proclamation or announcement on U.S. Citizenship and Immigration Service’s website without issuing new documents or rules in the Federal Register.

To qualify for TPS and the associated work authorization, an individual must be from one of the countries designated for TPS and have met the deadline for entry into the US. When applying for TPS, an individual must submit evidence in three categories: proof that the individual is a national of a foreign country designated for TPS; proof of entry into the U.S. before the associated deadline for his or her nationality; and proof of continuous residence in the U.S. since entry. For some countries, there is an additional physical presence requirement. Documents in a foreign language used as evidence must be accompanied by certified translations. Although there are fees associated with TPS applications, fee waivers may be available to qualified individuals.

Currently, the countries designated for TPS are Burma (Myanmar), El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Venezuela, Yemen, Afghanistan and Ukraine.

Afghanistan and Ukraine each received their TPS designation in March 2022. Afghan citizens must have arrived in the U.S. before March 15, 2022 and must have continuously resided in the U.S. since that date to receive TPS. Ukrainian citizens must have arrived in the U.S. before March 1, 2022 and have continuously remained within the U.S. as well. As of March 24, 2022, the registration period and process for individuals from Ukraine and Afghanistan has not been announced in the Federal Register.

Navigating the TPS process can be confusing both for individual applicants and for organizations seeking to hire individuals with TPS status. Faith based-organizations who are trying to help individuals still in Europe or have already arrived here in the U.S. face additional challenges.