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Temporary Protected Status and Visa Primer: Ukraine

On March 3, 2022, the US announced it had designated Temporary Protected Status (TPS) for Ukraine. This means that Ukraine citizens already in the US will not be deported, even if their visas expire. This is a type of humanitarian protection that can be invoked by the Executive, without Congressional approval. It allows those from countries that have received the TPS designation to remain in the US for a particular period of time, and apply for work authorization. TPS for Ukraine has been initially granted for 18 months. During this time, citizens of Ukraine will be protected from deportation, regardless of their immigration status (e.g. their visitor or student visas expire). TPS is not itself an immigration status, it is a temporary form of protection.

At the same time, the US has indicated that it will not lift the primary intent requirement for non-immigrant visas. This means that citizens of Ukraine outside of the US, seeking to enter will not easily be able to do so, if at all. Over 1 million people have fled Ukraine, crossing into bordering countries with many travelling onwards. The US has stated that it feels there are sufficient options for citizens of Ukraine in other countries and will not be liberalizing their visa policies for Ukraine.

Non-immigrant visas each have many requirements (e.g. showing letters of college acceptance for student visas and letters of employment for work visas), but one requirement they all have in common is the burden the applicant bears to prove that they do not intend to remain in the US. Whenever there are hostilities in one's home country (or family members in the US, or a lack of funds or property or family in the home country) it becomes much more difficult for applicants to meet that non-immigrant intent requirement. The presumption the US administrative agencies apply is that applicants are in fact more likely to remain, and that the burden placed on the applicant to prove they do not becomes even higher.

Most European countries are visa waiver countries. These are reciprocal agreements whereby US citizens staying less than 90 days in a visa waiver country (like France) do not need a visa, as long as they are only engaging in tourism and not working. A person coming from France to the US would similarly not need a visa to enter. Ukraine does not have visa waiver entry status. To visit or engage in business in the US, a citizen of Ukraine would need at least a B1/B2 visa. The US has informally stated, and we have already seen evidence of, their unwillingness to lift the intent requirement for non-immigrant visas like B1/B2 visas. On the contrary, the Department of State, responsible for issuing non-immigrant visas through its embassies and consulates, has stated that it will more stringently enforce the intent requirement and all of the discretionary presumptions it has the legal authority to wield. For example, consular officers have the discretion to assume that anyone leaving Ukraine now would not intend to return. Even citizens of Ukraine who had previously received non-immigrant visas well before the war and who attempt to enter on them now are being interrogated for intent to remain by Customs and Border Patrol (an arm of DHS) when they arrive in the US. We have learned of many hours long interrogations of Ukrainian non-immigrant visas holders by CBP upon entry in the past week.

As discussed in the earlier post on Ukraine (Refugee and Asylum Law Primer), commercial carriers are fined by the US (around $35,000 per infraction) for allowing on board anyone without a valid passport and visa. A person without a visa will not be permitted to board a plane to the US. And and person with a non-immigrant visa should now expect to prove, upon entry, that they do not intend to remain. Sufficient proof in non-war time periods may look like: property, a job and family in the home country, and a temporary, time limited project in the US along with a return ticket home.

With respect to immigrant visas, the US has also informally indicated that they will not begin processing applications until July. This means that US citizens with family in Ukraine who are eligible to apply for family based immigration to the US (green cards), will not be able to quickly seek and receive them.

Because the Biden administration and its agencies (Department of State, Department of Homeland Security) govern most of these discretionary decisions, those interested in seeing these policies changed or liberalized should bring pressure to bear on the Executive branch.

*The foregoing is not legal advice and should not be conceived of as providing individual legal advice.

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