Background and Talking Points Employment Authorization for Ukrainians

Numerous articles written in recent years have highlighted the dangers of exploitation, abuse, and victimization for individuals who are not allowed to work lawfully. This is not specific to Ukrainians, nor is this a new problem. What’s different about the crisis facing newly arriving Ukrainians is the magnitude of the problem, which is compounded by several factors. The Ukraine Immigration Task Force has taken steps to try to address this crisis with at least a temporary solution that would get hundreds of thousands of recent arrivals working legally as soon as possible. Please read our letter to U.S. Citizenship and Immigration Services and the Department of Homeland Security,  and share our Change.org petition to get more signatures for this initiative.

A Huge Influx of Displaced Ukrainians Entering the United States

First, the sheer number of Ukrainians arriving to the U.S. in just a matter of months is vastly greater than any present-day wave of immigrants arriving from any single country. Russia’s war has created the largest refugee crisis since World War 2. According to the United Nations, over 12 million people have been displaced in Ukraine, with more than 5 million leaving the country and another 7 million moving to other locations within Ukraine. Other estimates put the numbers at almost 9 million Ukrainians fleeing the country and over 8 million being displaced internally. By March, more than half of Ukraine’s children had been displaced, and since then, over a quarter have left the country. 

As Ukraine enters the sixth month of this horrific war with no end in sight, many countries in Europe are overflowing with Ukrainian refugees, many of whom have found makeshift shelter at refugee camps. The United States is still far behind proportionally in its response to the staggering refugee crisis. Only 300 Ukrainians have been resettled here this year through the formal U.S. Refugee Admissions Program (USRAP), which uses federal funding to resettle refugees in partnership with U.S. resettlement agencies and provides initial housing, benefits, cash assistance, language and skills training, and job placement assistance.

Even then, Ukrainians are seeking refuge here by the thousands and are willing to do just about anything to get here. The Department of Homeland Security (DHS) released data in June indicating over 71,000 Ukrainians have arrived here since March of this year. At least 20,000 of them crossed through the border from Mexico. Since the Uniting for Ukraine program was launched, over 15,000 Ukrainians entered the U.S. as beneficiaries of U.S. sponsors, and another 23,000 have been approved for travel to the U.S. (as of mid-June). At least 100,000 Ukrainians are expected to arrive through this program, which could be extended if demand remains high. All of them must come up with the money to pay for airfare, transit, lodging, and application fees for various immigration forms. 

One only needs to read a handful of comments posted on our Change.org petition to get a sense of their desperation. They write how they lost everything in Ukraine and barely made it to the U.S., often experiencing dangerous and expensive journeys. Work and production have been permanently disrupted, school has stopped, and many services have ceased to exist. On top of their trauma from having lost their homes, all their possessions, and their way of life, many of them also lost parents, children, spouses, siblings, and other loved ones.  A lot of those who managed to come to the U.S. left behind husbands, fiancés, brothers, fathers, children, and other family members. They want nothing more than the chance to work and regain some sense of control over their lives.

Exploitation and Abuse of Newly Arriving Ukrainians

Second, almost 90 percent of Ukrainians arriving in the U.S. are women and children who have been devastated by the war and the loss of any semblance of stability, including economic, physical, and emotional. While some of those who arrived here had relatives or acquaintances, many did not, and they have no trusted network to support them or resources to pay for housing and necessities. This is particularly true for many of those who crossed the border between February and April. But it’s not limited to that group.

Those who are arriving through the Uniting for Ukraine program are “sponsored” by U.S. individuals or organizations. But many of those applying to be sponsors have no prior relationship with the Ukrainian beneficiaries they agree to support. The same can be said about the NGOs that agree to sponsor Ukrainians they have never met. One would like to think that the majority of these U.S. sponsors are undoubtedly well-meaning, but the numerous troubling examples of invitations we have seen on social media, for example, where males advertise such features as “remote ranch one hour from the city far from public transportation, ideal for my children and yours, light housekeeping and domestic help in return” underscore the risks for some Ukrainian women and their children who may be forced to labor in unsafe conditions they did not choose. 

One of our volunteer attorneys who works with Sanctuary for Families, a refuge for victims of violence and trafficking, is already reporting instances of sexual abuse by a U.S. sponsor through Uniting for Ukraine. We fear there will be other such victims. Unfortunately, many of these women and children have nowhere to go and no one else to turn to if they are exploited and/or abused but cannot legally work. Children are also at risk of exploitation, victimization, and domestic violence, especially if they are forced into a living situation where their mother cannot legally work and must depend on a stranger for housing and other needs.

In early April, the New York Legal Assistance Group (NYLAG) published an article on the plight on newly arriving Ukrainian women who are struggling to support themselves and their families: https://nylag.org/ukrainians-find-a-wealth-of-community-but-no-legal-work-in-new-york/. The article describes how some women are putting themselves in dire circumstances to earn a living, jumping at whatever opportunities come their way. There are numerous such stories, and they are growing each day.

The Unprecedented Application Backlog

A third factor exacerbating an already-dire situation is the staggering and unprecedented backlog of applications for work permits – not to mention the millions of total applications to U.S. Citizenship and Immigration Services (USCIS) – that force newly arriving Ukrainians to wait for almost a year or even more before they can work legally.

Early on in our task force’s founding, we heard from scores of attorneys, immigrant assistance groups, and the Ukrainian community that the biggest issue facing newly arriving Ukrainians was the lack of access to lawful employment. Numerous U.S. businesses and institutions stepped up right away to offer employment to the tens of thousands of Ukrainians who were arriving all across the country. Many employers thought they could replenish their insufficient staff while giving new arrivals who had lost everything the opportunity to rebuild their broken lives – or at least to earn a living while they found safety in the U.S. 

In the past, immigrants could apply for employment authorization and expect to receive an Employment Authorization Document (EAD) in 3 months. Unfortunately, we soon learned that the new reality was nowhere near 3 months. Thanks to a backlog of over 1.5 million EAD applications, an applicant would be lucky to receive a work permit in 8 months but could expect to wait 10-13 months in many regions of the country. 

How did this enormous backlog happen? Immigration policies pursued by the previous administration are partly to blame in that it cut funding to needed immigration processes in its quest to curtail the flow of immigrants and reduction of some programs. The pandemic had a major impact as well, forcing USCIS to shut down completely for part of 2020 and only reopen at limited capacity thereafter. As a result, USCIS – which functions as a fee-for-service agency – saw its revenue plummet and its backlog of applications skyrocket from 2.7 million in July 2019 to 5.2 million as of June 2022. 

But even before the pandemic, USCIS experienced increasing backlogs the past decade due to its fees not being sufficient to fund enough staff. On top of that, Congress does not appropriate funds for the agency’s humanitarian services that allow application fees to be waived for certain applicants such as asylees, refugees, victims of certain crimes, and individuals who can prove financial hardship. The only way USCIS can make up for that shortfall is by increasing fees for all paying applicants, which is an approximately 2-year process that requires rule changes with notice and comment, plus approval by DHS and the White House. In contrast, the Department of State and the Department of Health and Human Services both receive annual Congressional appropriations to fund their humanitarian programs.

With the easing of pandemic travel restrictions and the Biden Administration’s return to more immigration-friendly policies, there has been an uptick in demand for immigration services, creating a perfect storm of backlogs that will take years to work through. As of Fall 2021, the wait time for an asylum-seeker to receive a work permit was 8-12 months, while the processing timeline for an asylee applying for a green card was 19-46 months. 

We knew we needed to help both the 20,000 Ukrainians who were admitted at the border and the 100,000+ who are arriving this year through the Uniting for Ukraine program. Thus, our goal quickly became finding the most expeditious solution to help the greatest number of newly arriving Ukrainians be able to work legally.

Existing Statutory and Regulatory Requirements for Employment by Immigrants

Here’s a little bit of legal background that led to our proposal for temporary conditional employment authorization – which would help not only Ukrainians but also Afghans and individuals from other countries admitted on humanitarian parole.

In the United States, most non-citizens must obtain employment authorization (aka a work permit) before they may lawfully work here. They would do so by filing a Form I-765 Application for Employment Authorization Document with U.S. Citizenship and Immigration Services (USCIS). 

The Code of Federal Regulations that pertains to immigration states, “Whether or not an alien is authorized to work in the United States depends on his or her immigration status and circumstances.” 8 CFR 274a.12. It goes on to say: “While employment authorization for certain aliens is automatically provided by virtue of their immigration status or circumstances, other aliens must affirmatively apply for employment authorization and USCIS may grant employment authorization as a matter of discretion.” INA 274A(h)(3); 8 CFR 274a.12(a) (authorized to work based on immigration status or circumstance); 8 CFR 274a.12(b) (authorized to work for a specific employer based on particular nonimmigrant status); 8 CFR 274a.12(c) and 8 CFR 274a.13(a)(1) (authorized to work upon application for and grant of discretionary employment authorization).

Certain categories of aliens are allowed to work “incident to their status,” including those who have been granted asylum, those who are considered “refugees” under U.S. law, those who have been granted temporary protected status, and those who have been paroled into the country for a host of reasons. The regulations distinguish between those categories who may work immediately without having to file anything, and those who are considered eligible to work based on their immigration status but must apply to USCIS to receive a document showing proof of eligibility.

All other aliens must file a Form I-765 Application for Employment Authorization Document and wait for a decision from USCIS. This includes the c(11) category of persons admitted through humanitarian parole.

Some attorneys have argued that these regulations should be used to justify the issuance of work permits to persons who have been granted humanitarian parole, since the policy reasons for granting humanitarian parole are similar to some of the reasons we offer asylum protection and refugee entry, that is to admit individuals “for urgent humanitarian reasons or significant public benefit.” The difference from a legal perspective between asylees, refugees, and humanitarian parolees is the application process, the threshold of evidence required, and the policy intention to permanently resettle or provide pathways to citizenship.

As a result, some advocates have focused on amending the code to allow the c(11) category of aliens (those admitted through humanitarian parole) to receive automatic employment authorization incident to their immigration status.  

We attorneys in our Ukraine Immigration task Force had some comprehensive debates about these code provisions over the past few months to see if this could be feasible approach to allow Ukrainians to start working as soon as possible. Some of our attorneys engaged in dialogue with DHS and USCIC urging the agencies to consider using their administrative authority to either minimally amend the regulations or issue emergency guidance that could ease the application burden, or, alternatively, expedite the applications for work permits. Based on repeated pushback we received from the agencies, we determined that pursuing a rule change or regulatory reform would not be a viable strategy that could result in timely solutions to help those most in need. 

Moreover, we learned in subsequent conversations with USCIS that the agency was hesitant to expedite employment authorization specifically for Ukrainians, since it was constrained by the need to act fairly and equitably when it came to serving all immigrant communities. Some legal and immigration groups had already criticized the Administration for favoring Ukrainians over other immigrant groups in issuing Temporary Protected Status speedily and allowing Ukrainians to cross the border between the end of February and the end of April. The streamlined Uniting for Ukraine program was then launched at the end of April with the goal of admitting up to 100,000 Ukrainians fleeing the war. 

So, we went back to the statutes to see how we could work within the existing laws and regulatory framework.

Title 8 of the U.S. Code deals with rights and naturalization of aliens. In Chapter 12, the law states that it is unlawful for aliens to work or apply for employment without being authorized to work, and it is unlawful to hire such individuals. At the same time, U.S. Code provides that an employer verifying an alien’s employment authorization may use as “Documents evidencing employment authorization… (ii) other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section.” INA 274A(b)(1)(C)(ii).

The corresponding regulation specifying aliens who must apply for employment authorization does not describe the nature of the documentation evidencing authorization beyond simply stating they “may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document.” 8 CFR 274a.12(c)

This wording suggests that the agency has some discretion as to the format and content of the employment authorization document it could issue for purposes of demonstrating employment eligibility. Furthermore, nothing in either the statute or the regulation requires the issuance of a uniform employment authorization document to all applicants. 

Our proposed solution uses this lack of specificity, so to speak, to advocate for a simple, cost-effective solution that is fair, equitable, and we believe entirely within the agency’s authority. In fact, our recommendation doesn’t call for Ukrainians to bypass the existing application process at all. Rather, we are only asking USCIS to adjust its procedures within the existing application process to temporarily grant conditional employment authorization to Ukrainians, Afghans, and others granted humanitarian parole. 

Here’s how it would work:

• All individuals who are admitted on humanitarian parole who are eligible to apply for employment authorization can file Form I-765 Application for Employment Authorization Document (EAD) online through their USCIS account. This includes 1) individuals from Ukraine, El Salvador, Guatemala, Honduras, and other countries who were granted humanitarian parole at a U.S. border; 2) Afghans who were admitted through humanitarian parole; and 3) Ukrainians granted parole under the Uniting for Ukraine program. 
• Per the Form I-765 instructions, all applicants who have been granted humanitarian parole should designate their eligibility category as “(c)(11) Public Interest parolees” when filing.
• USCIS will issue an automatic confirmation email upon electronic receipt of the applicant’s Form I-765 specific to the “(c)(11) Public Interest parolees” designation. We understand USCIS already utilizes multiple I-765 receipt notices based on an applicant’s eligibility category, so such a response could be implemented with minimal adjustment. Alternatively, USCIS could issue a subsequent email to applicants who file using the “(c)(11) Public Interest parolees” designation following the initial I-765 receipt notice.  
• In its confirmation or subsequent email, USCIS will issue a temporary conditional work authorization permitting applicants to work in the U.S. for up to 180 days while USCIS processes their Form I-765. Individuals will be able to show the conditional work authorization notice to employers to demonstrate eligibility for lawful employment without violating their immigration status.
• The Social Security Administration (SSA) will accept a 180-day temporary conditional work authorization as sufficient to issue a Social Security number to applicants who request one on their Form I-765. USCIS will use the same process it uses presently to inform the SSA when the temporary conditional work authorization is issued.
• If USCIS is unable to process an applicant’s Form I-765 within 180 days, the agency may, at its discretion, extend the individual’s temporary conditional approval for up to another 180 days. 
• Applicants who receive a formal decision from USCIS approving their employment authorization and who are issued an Employment Authorization Document (EAD) will present their EAD card moving forward to demonstrate lawful employment. Applicants who receive a formal denial will not be permitted to continue working lawfully upon learning the decision.
• If USCIS is unable to timely process an applicant’s Form I-765 within 12 months and issue a full decision, then the applicant will have the option of filing a retroactive fee waiver to receive a refund. 

We welcome an opportunity to work with agencies and the Administration on other remedies that would address this burden.