Ukrainians Fleeing in War Face Difficult Path to U.S.

“Your immigrant visa case will be processed in Frankfurt, Germany,” reads the official email. For Ukrainians in the process of immigrating to the U.S., the message carries hope. It is the first step to escaping the danger of war. But what if they have no U.S. visa?

Some believe that a person fleeing war—especially one caused by a dictator—can approach a U.S. Embassy to request asylum. Unfortunately, this is not the case. Although individuals already known to the Embassy may, in some cases, receive a so-called Priority One (P-1) referral to the U.S. Refugee Admissions Program (USRAP), it is rare.

The U.S. does admit a limited number of refugees each year for resettlement—around 11,400 at last count. U.S. Citizenship and Immigration Services (USCIS) leads USRAP, which sends U.S. Refugee Officers to conduct interviews at a handful of resettlement support centers (RSCs) across the globe.

Once the U.N. or another authorized non-profit organization identifies a prospective refugee, they will be referred for an interview with a U.S. refugee officer, and the officer will determine whether or not they can be classified as a refugee and admitted to the U.S. There was an RSC in Kyiv, but it closed due to Russia’s invasion.

Even if one can get an official referral to USRAP, there is still a legal determination to be made. Under international and U.S. law, a refugee is someone who is unable to return to his home country because they have a “well-founded fear of persecution” due to their race, religion, nationality, political opinion, or membership in a particular social group.

Displacement by war is not an automatic ticket to refugee status. Ukrainians certainly have a good argument that they are being persecuted, but the prospective refugee must still await the official determination. The resettlement process takes an average of 18-24 months.

Few Other Avenues

Many U.S.-based families of Ukrainians wonder if there are other avenues. There are, but they are limited. A Ukrainian displaced by war may apply to USCIS for humanitarian parole, but this benefit is only granted “sparingly,” requires extensive documentation, and can only be requested by a person overseas by sending the application to the U.S.—along with a fee of $575. U.S. Embassies overseas do not routinely accept direct applications for humanitarian parole.

That leaves simply trying to get a visa from a U.S. Embassy to arrive as a tourist. This, too, is a perilous path. Ukrainians who apply for tourist visas who are thought likely to use them to enter the country to request asylum will be denied the visa. Why? Because under the law, applicants for most types of non-immigrant visas are presumed to intend to overstay and remain unlawfully.

The visa applicant can only overcome the presumption by proving that he has a “residence in a foreign country which [he] does not intend to abandon.” Easier said than done, especially if Russian forces have just bombed your residence, and your visit looks to the officer like it will be an indefinite one.

Options Here or at the Border

Options open up if one is already in the U.S. The Biden administration recently announced it would grant Temporary Protected Status (TPS) to Ukrainians who arrived in the country on or before March 1. TPS allows Ukrainians to live and work here for 18 months.

Those already in the country can also apply for asylum by filing a request with USCIS. If granted, asylum provides a path for persons to obtain a green card and, eventually, U.S. citizenship. An asylee and a refugee are legally the same, but a refugee is identified overseas and allowed to resettle in the U.S. (or another country), whereas an asylee has applied for refugee status from within the U.S. (or on the border), and has been granted that status

Some Ukrainians have attempted to request asylum by arriving at a port of entry on the U.S.-Mexico border. But they have not been successful due to pandemic-related health procedures implemented during the Trump administration. Title 42 of the U.S. Code permits immigration officers to “prohibit…the introduction” of anyone who might create a “serious danger of [introducing] a communicable disease.”

In practical terms, this means anyone thought to be likely to request asylum who approaches the port of entry can be turned away before he gets a chance to ask for it. Senate Majority Leader Chuck Schumer (D-NY) recently decried the continued use of Title 42 at the border as defying “common sense and common decency.”

Tools for Welcoming Ukrainian Refugees

President Biden could make a couple of moves to make it easier for Ukrainian refugees to resettle in the U.S.

The first would be to raise the fiscal year ceiling on the number of refugees from Europe and Central Asia who can be referred to USRAP—currently set at only 10,000. This would better align words with actions, given Biden’s recent pledge to welcome Ukrainians “with open arms.”

Second, he could designate Ukrainians as eligible for priority access to USRAP. This action, known as a P-2 designation, would mean displaced Ukrainians would not need a referral from the U.N. to request consideration for our refugee program.

Poland alone has taken in almost 2 million Ukrainian refugees, but it seems to be reaching its capacity. Polish President Andrzej Duda has asked Vice President Kamala Harris to expedite visas for Ukrainians with relatives in the U.S. How the Biden administration will answer him is not yet clear.

Editor’s Note: The White House announced on March 24 plans to “welcome up to 100,000 Ukrainians” and others fleeing Russian aggression “through the full range of legal pathways, including the U.S. Refugee Admissions Program.”

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.