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Immigration and the Ukraine Crisis

Immigration Law

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Due to the worsening nature of the Russian attack on Ukraine, significant actions have occurred. The US Embassy in Kyiv suspended operations on February 12, and on February 24 the US Consulate in Lyviv also suspended operations. As of the time of writing, there are an estimated 1 million refugees fleeing Ukraine to bordering countries. This amount is anticipated to increase.

Currently, until the end of 2022, Ukrainian applicants do not require a visa to enter countries in the European Union (EU). Poland in particular is offering Ukrainian nationals a 3 year status upon entry and is waiving certain key entry requirements. However, only certain Ukrainians may depart, all males aged 18 to 60 are prohibited from leaving the country.

US Visa Processing

On March 2, Ukrainians were formally added to the State Department’s list of Homeless Nationalities. The State Department defines ‘Homeless Cases’ as follows: “Generally, a homeless visa applicant is one who is a national of a country in which the United States has no consular representation or in which the political or security situation is tenuous or uncertain enough that the limited consular staff is not authorized to process IV applications.”

The Department of State has designated Frankfurt and Warsaw as processing points for Ukrainian Immigrant Visas. With the homeless nationality designation, any embassy in which the applicant is present in may be suitable for applying for a non-immigrant visa.

There is a huge demand for non-immigrant and immigrant visa processing for Ukrainians. This demand, coupled with Department of State resources likely being deployed to address the humanitarian crisis, will likely lead to significant backlogs at all regional embassies for IV and NIV cases.

Temporary Protected Status (TPS)

On March 3, 2022 Department of Homeland Security (DHS) Secretary Alejandro Mayorkas announced the designation of Ukraine for Temporary Protected Status (TPS) for 18 months.

Secretary Mayorkas stated the following when announcing the TPS designation: “Russia’s premeditated and unprovoked attack on Ukraine has resulted in an ongoing war, senseless violence, and Ukrainians forced to seek refuge in other countries. In these extraordinary times, we will continue to offer our support and protection to Ukrainian nationals in the United States.”

What is TPS?

The Secretary of the DHS may designate a country for TPS due to specific conditions in that country that prevent its nationals from returning safely, or if the country is unable to handle the return of its nationals. As opposed to non-immigrant visas TPS is a protection for individuals in the country, and does not provide a ground for entry to the country.

When does it go into effect?

According to the DHS, Ukrainian nationals eligible for TPS under this designation must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022 will not be eligible for TPS. The rule will go into effect when it is published in the Federal Register.

Who can obtain TPS?

TPS is generally available for nationals of the designated countries who meet certain key criteria:

–          Be a national of the designated country, or if stateless have last resided in the designated country.

–          Filing: Eligible individuals must file within the initial window for applications, or re-registration as designated by the DHS.

–          Residence: Eligible individuals must have continuously physically present and continuously residing in the United States since the most recent TPS designation date.

Barriers to TPS include the following:

–          Have been convicted of any felony or two or more misdemeanors committed in the United States.

–          Inadmissibility grounds under INA section 212(a), including non-waivable criminal and security-related grounds.

–          If the individual is subject to any of the mandatory bars to asylum. These include, but are not limited to, participating in the persecution of another individual or engaging in or inciting terrorist activity.

–          Not meeting the continuous physical presence and continuous requirement.

–          Failure to file within the specified time frames.

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