Commentary: Congress Should Grant Temporary Protected Status to All Ukrainians

Editor’s note: This sponsored article was contributed by attorney Charles Kuck as part of Kuck Baxter Immigration’s annual partnership with Global Atlanta.

Even as millions of Ukrainians flee violence in their country, the United States has officially resettled very few – only 690 since October 2021. This small number is the result of bureaucratic red tape and a broken immigration system that prevents them from entering the U.S. as refugees, asylum seekers or visitors. Congress should, at minimum, enable Ukrainians seeking refuge to enter immediately under an expanded Temporary Protected Status (TPS) program.

TPS can be granted to refugees who would face extreme hardship by returning to their place of origin, as in cases of war or natural disaster. However, only those who are already in the U.S. may apply. Clearly, many Ukrainians fleeing the Russian incursion would be in harm’s way if they return home, but few are already here in the U.S. to be able to apply for TPS.

Some 2 million Ukrainians are sheltering in Poland, which, as a percentage of the host country population, is the equivalent of the U.S. absorbing 17 million. Polish President Andrzej Duda has asked U.S. Vice President Kamala Harris to help simplify the process of family reunification for Ukrainians with relatives in the U.S.  Yet, Congress is slow to act.

Our key problem on taking refugees is that American immigration laws are static. Unlike other countries where the executive branch controls immigration, U.S. immigration is governed by the legislative branch, which is notoriously stymied by political struggles. Refugees must undergo a two-year vetting process to gain legal entry into the U.S.  Ukrainians obviously do not have two years to wait, and most want to return to Ukraine after the conflict is over, not immigrate here.

Tourist visas may seem like a solution, but applicants must apply at U.S. consulates and prove they will leave after a certain date, which is currently impossible for most Ukrainians to promise.

There are feasible options, however. One is a “parole” process that allows people fleeing humanitarian crises to legally enter the U.S.  President Joe Biden recently gave U.S. Customs and Border Protection and ports of entry the ability to parole Ukrainians rather than detaining them as deportees, as the process typically requires. The president also announced that his administration would allow in 100,000 “refugees” but has not detailed how it plans on doing this, or when.

Ironically, Russians who are protesting their government’s invasion of Ukraine are also fleeing to the U.S., but our current administration is treating them drastically differently. They are being detained and required to remain in Mexico under a Trump-era rule, Title 42, which was enacted to prevent COVID-19 from entering through the U.S. southern border.

American families would surely take in Ukrainian refugees, like thousands of British households have signed up to do, but we do not have a system in place to enable that. President Biden did announce that U.S. embassies will begin expediting family petitions at embassies, but that doesn’t mean it will happen immediately; it will still take months of background checks and other processes.

The Biden administration has designated the U.S. embassy in Frankfurt, Germany, as the primary location for Ukrainians to apply for visas, but there has been no liberal granting of visitor visas that would bypass the normal immigration process. A visitor visa could grant a Ukrainian 6-12 months in the U.S. if reuniting with family here, but this is not happening because the administration is not currently processing these and is not thinking creatively about how to respond to this immigration crisis.

Since the U.S. has no physical border with Ukraine, refugees who do not currently have a visa must fly to Mexico and walk to the U.S. border to apply for parole or asylum, or they can go to a consulate and apply for a visitor visa. But there is no “express” option right now. We find ourselves an America, the beacon of liberty, with its broken immigration system, unable to solve a crisis that we recognize is in our national interest to resolve.

Washington is failing the Ukrainians just as it has failed Afghans seeking asylum in the U.S. last year. The U.S. evacuated more than 76,000 Afghans and gave most of those a temporary parole status and ultimately TPS, but we also left tens of thousands behind. On March 16, 2022, the Biden administration granted TPS to Afghans who were here on humanitarian parole, but Congress has still not passed the bipartisan Afghan Adjustment Act to adjust their immigration status; they will have to apply for asylum instead.

If Congress cannot do this for our own Afghan allies who we brought here, how can we expect it will act on behalf of Ukrainian refugees who are outside of the U.S.? Congress is broken on this issue, and the Biden administration is inept in dealing with it.

TPS is typically a quicker process than the other immigration categories and is used for emergency situations like the current Ukrainian crisis. However, to qualify for TPS, Ukrainians had to be in the U.S. by March 1 – a policy that was not even announced until March 3.

It is simply lack of foresight and bad public policy to not have a floating date for Ukrainian TPS, which is the very least Congress should be considering. Instead of March 1, why not have a policy that gives Ukrainians a certain timeframe to apply and then states that the date will be reassessed in 30 days? And subsequently, as TPS is only valid for 18 months, with its renewal at the discretion of the Department of Homeland Security, a path to status adjustment could be made available.  

We have not yet seen the worst nor the end of the Ukrainian refugee crisis. If Russia takes over the entire country, not just portions of it, many more Ukrainians will be forced to flee. We haven’t even begun to see the exodus from that country if that would occur.

Not using immigration as a tool to increase America’s competitiveness and maintain our country as a beacon of liberty remains an elusive problem for the federal government.

Congress should, at minimum, grant TPS to all Ukrainians – and should be doing much more.

Contact Kuck Baxter Immigration at (404) 816-8611.