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U.S. Visas for Ukrainians and Russians: Navigating the Maze

When the Russian army entered Ukraine on February 24, 2022, that set in motion panic for family and friends in the U.S. and the need to quickly explore visa options for their loved ones in the Ukraine, Russia, and neighboring countries. Below is a brief general survey of visa options:

Temporary Protective Status (TPS):  Nationals of a country may be designated by the U.S. for temporary protective status when conditions in that country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disasters, or extraordinary and temporary conditions.   This allows Ukrainian nationals that were already physically present in the U.S. as of March 1, 2022 to remain in the U.S. for 18 months.  They may also apply for work authorization.

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.  With a showing of a special need, those in TPS status can also apply for a travel document.

Those arriving in the U.S. after March 1, 2022 are not eligible for TPS.

Asylum:  This is a temporary status granted to individuals in the U.S. who seek protection  because they have personally suffered persecution or have credible fear of being persecuted if they return to their home county.  The credible fear must be based on one of five narrowly protected grounds including persecution based on race, religion, nationality, membership in a particular social group, and political opinion.  Unfortunately, being in a country that is facing war and generalized violence does not in and of itself qualify for asylum.  Asylum applicants who are in the U.S. must apply within one year of their last entry into the U.S. absent a special exception.  If someone was in TPS status and also qualifies for asylum, they are eligible to apply within one year of entry.

If a Ukrainian is offered for example safe haven in an E.U. country, that alone will not be a bar to that individual qualifying for asylum in the U.S. as long as they were not offered permanent status in the E.U. (not firmly resettled) and also that they meet the narrow eligibility requirements under U.S. asylum law.

After someone has been approved and has held asylee status for 1 year in the U.S., they may apply for permanent residence along with their spouse and single children under age 21.

Refugee Status Overseas: If one is overseas, then they must apply as a refugee.  When a U.S. embassy or a specially trained nongovernmental organization refers a refugee applicant to the United States for resettlement, the case is first received and processed by a Resettlement Support Center (RSC).  The Department of State currently funds and manages seven RSCs around the world operated by non-governmental organizations (NGOs), international organizations, or U.S. embassy contractors.

Under U.S. law, a “refugee” is a person who is unable or unwilling to return to his or her home country because of a “well-founded fear of persecution” due to race, membership in a particular social group, political opinion, religion, or national origin. This definition is based on the United Nations 1951 Convention and 1967 Protocols relating to the Status of Refugees, to which the United States became a party in 1968. Following the Vietnam War and the U.S. experience resettling Southeast Asian refugees, Congress passed the Refugee Act of 1980, which incorporated the Convention’s definition into U.S. law and provides the legal basis for today’s U.S. Refugee Admissions Program (USRAP).

B-1/B-2 Visitor:  A visitor coming to the U.S. must show that they intend to stay on a temporary basis, that they have sufficient funds to live on, and will not work in the U.S.   If one is seeking to apply for a B-1/B-2 visitors visa they would do so at a U.S. Embassy or Consulate closest to where they currently reside.  Upon arrival at the port of entry, U.S. Customs & Border Protection (CBP) has the ultimate discretion to decide if one meets the criteria of a temporary visitor.  In addition, the visitor must be properly vaccinated per CDC requirements.

Other Possible U.S. Visas:  There may be other possible visa options as well including E-2 investor, F-1 student, H-1B professional worker, L-1 intra-company transfer, and O-1 extraordinary ability.

Other Countries Outside the E.U. Accepting Ukrainian Refugees:  One can also explore other countries for opportunities to resettle, whether temporarily or permanently.  For example, Canada recently announced a very generous program for Ukrainians.

Visas in Other Countries Based on Investment:  In addition, many countries have investment programs where an individual may invest in that country in exchange for getting a second passport for themselves and their immediate family.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XII, Number 70
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About this Author

Greg L. Berk Labor & Employment Attorney Sheppard Mullin Orange County, CA
Partner

Greg Berk is a partner in the firm’s Labor and Employment Practice Group. He leads the Firm’s immigration practice and is based in Orange County, California. He is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization. He is the author of Immigration Checklists and Practice Pointers – A  Desk Reference for Attorneys and HR managers. He has also taught immigration law at two college-level paralegal certification programs in California.

Areas of Practice

He has over 20 years of...

714-424-2877
Christine L. Doyle Labor & Employment Attorney Sheppard Mullin Orange County, CA
Attorney

Christine L. Doyle is an attorney in the Labor and Employment Practice Group in the firm's Orange County office.

Areas of Practice

Christine has experience in a broad range of immigration law, with a focus on employment-based immigrant and nonimmigrant visa petitions. She has numerous years of experience counseling employers and their employees on U.S. immigration, global immigration, and I-9 compliance matters.

714-424-2853
Andrew J. Desposito Attorney Labor Employment Group Sheppard Mullin Orange County
Special Counsel

Andrew Desposito is special counsel in the Labor and Employment Practice Group in the firm's Orange County office. Andrew's practice focuses on business immigration including I-9 compliance, EB1A, EB1B, National Interest Waivers, H1B, and E-2 and L1 matters.

714-424-2856
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