U.S. Humanitarian Relief for Ukrainians in the Wake of Russian Invasion

Most of the World has been horrified by the Russian invasion of Ukraine, a sovereign nation that posed no threat whatsoever to the Russian Federation. The U.N. estimates that two million refugees have already fled Ukraine. While preliminary reports suggested that the total number of refugees could be as high as five million, I believe the number will be much, much higher as the fighting continues and Russian forces target civilians. U.S. sees 'very credible reports' of deliberate attacks on civilians in Ukraine.

The United States has helped organize a strong, united response to this Russian aggression. Still, it has only begun to consider what steps it will take to protect the countless citizens of Ukraine fleeing the violence or who have found themselves stranded overseas when the invasion started.

This post will discuss the most recent aid developments and the options that Ukrainians have, depending on where they are and what their current U.S. immigration "status" is.

TPS. On March 3, 2022, Department of Homeland Security Sec. Alejandro Mayorkas designated Ukraine for Temporary Protected Status (TPS) for 18 months. So, what does this mean? As the press release states:

"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. These conditions result from the full-scale Russian military invasion into Ukraine, which marks the largest conventional military action in Europe since World War II. This invasion has caused a humanitarian crisis with significant numbers of individuals fleeing and damage to civilian infrastructure that has left nearly a million individuals without electricity or water or access to food, basic supplies, shelter, and emergency medical services".

Unfortunately, a TPS designation does not help those now fleeing the war and seeking to come to the United States. Instead, it applies only to citizens of Ukraine who are already here. The devil is in the details, as the rest of the press release shows:

"Individuals 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. Ukraine’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks."

As with any immigration law application, consulting with an immigration attorney or accredited immigration nonprofit agency is wise. At this time, one must await the publication of formal procedures for TPS applications in the Federal Register in order to actually submit anything.

U.S. Refugee Program Possibilities. In contrast to TPS, U.S. immigration law also provides the possibility of protection for “refugees” outside the United States. Under Section 207 of the Immigration and Naturalization Act (INA), a refugee is an alien who, generally, has experienced past persecution or has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See “About Refugee Admissions.” As with TPS, however, the ability to seek admission to the United States as a refugee is dependent on a U.S. Government determination that citizens of a given country or subgroup can apply for refugee status here. Once a positive determination has been made, most refugee claims are handled by the U.S. Refugee Admissions Program.

It is premature to discuss the details of such a program because the U.S. Government has yet to make a refugee determination for Ukraine. On March 4, 2022, The Washington Post asked, “Why isn’t Biden taking in refugees from Ukraine?”

It properly noted:

TPS does nothing to help with the swell of refugees crossing the Ukrainian border daily. It’s heartening to see so many nations in Europe taking in people fleeing Ukraine. Poland alone has taken in more than 500,000 * * * * The president can do this on his own, without Congress. This is yet another way to truly stand with the brave and industrious Ukrainian people and our allies around the world. I hope that President Biden makes the determination sooner rather than later.

Asylum. Foreign citizens already present in the United States or who arrive at its borders can make asylum claims. They are a type of “refugee” (see above) who can make persecution claims on the same grounds that overseas refugees can. I.e., they have experienced past persecution or have a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. (The so-called “five enumerated grounds” for an asylum claim.) Unhappily, while an individual in the United States or at the border can make an asylum claim and (probably, in the case of border claimants) secure temporary refuge in the United States while the claim is heard, I see two significant problems with such claims.

First, an individual asylum claim is just that: the individual claimants bear the burden of showing that they will be singled out for persecution on one of the five grounds. And, general country conditions such as crime and war don’t help. They cut against individual claims because they are risks everyone faces.

Second, the claimant must prove that “the government” is committing the persecution or at least is unable or unwilling to prevent third-party actors from persecuting the individual. Where the very existence of the foreign citizen’s government is put into question by war, it is hard to see how an adjudicator of an asylum claim can conclude that “the government” is responsible for the persecution of an individual claimant.

Put another way, asylum claims based on government persecution of individuals for political opinion – opposition to Russia’s invasion – or on other grounds are likely to be found premature. That situation may change if Russia destroys the Ukrainian government and substitutes a puppet “government” in its place. Because of this possibility, I would not counsel anyone to forego making an asylum claim at the border if no other option presents itself. “Changed country conditions” can turn a weak asylum claim into a successful one.

Humanitarian Parole. There is a concept in immigration law known as "humanitarian parole." Its purpose is described this way by USCIS:

"You may apply for humanitarian parole if you have a compelling emergency and there is an urgent humanitarian reason or significant public benefit to allowing you to temporarily enter the United States. Anyone can file an application for humanitarian parole. If you do not have an urgent humanitarian reason for your visit, you must follow the normal visa issuing procedures set by the Department of State."

While it appears to be tailor-made for situations like this, it is not. The very next sentence in USCIS’s description states, “You cannot use parole to avoid normal visa-issuing procedures or to bypass immigration procedures.”

I’ve had discussions with colleagues, and the consensus is that humanitarian parole is likely not a viable option for entering the U.S. based on the war in Ukraine alone. As with individual asylum claims, an applicant would need highly particularised humanitarian reasons for seeking this form of parole. I have a further concern is that those grounds would face heightened scrutiny in the case of Ukrainian applicants.

Visas – Non-Immigrant and Immigrant. Non-immigrant visas are for temporary stays in the U.S. A nonimmigrant-visa holder presenting himself at a U.S. port of entry is subject to “inspection and admission” by U.S. Customs and Border Protection (CBP) officers before actually receiving authorization to enter the U.S. CBP officers typically look for evidence that the non-immigrant visa holder has “immigrant intent” i.e, to remain permanently. Thus, the non-immigrant applicant should clarify that a temporary stay is planned and not bring items – excessive clothes, for example – which might suggest otherwise.

Immigrant visa holders can, of course, come to the U.S. now. However, Ukrainians who applied for immigrant visas and now seek visa interviews must schedule a consular appointment outside Ukraine since the Kyiv Embassy is closed. Only a small core of essential U.S. diplomats continue to function in western Ukraine.

I am informed that these interviews are easier to schedule now than before hostilities started. One should consult with immigration counsel for assistance in such cases.

What about new applications for non-immigrant visas outside Ukraine? Ukrainians can apply for emergency visitor visas in countries like Poland, but success is far from assured. One colleague reports that:

"Applicants for tourist visas in Warsaw were getting denials. It seems that they still have to prove their ties to the country (which is crazy) and intent to return. I am talking about the applicants who have relatives in the USA who submitted letters of support."

So, there you have it. Old bureaucratic procedures and “norms” remain in effect despite a war, except where changes are essential due to hostilities.

In the future, I hope to see the Biden Administration approve generous refugee quotas for the U.S. Above all, I want to see a cessation of the hostilities in an armed conflict whose start and continuation truly is a war crime. Why Have We Criminalized Aggressive War?, Tom Dannenbaum, 126 Yale Law Review No. 5 (March 2017).