March 13, 2023 Update:
The Department of Homeland Security (DHS) announced on March 13, 2023 that certain Ukrainian nationals and immediate family members who were paroled into the United States last year for urgent humanitarian reasons will be allowed to extend their parole. Those who have their period of parole extended will also be eligible to receive employment authorization for the additional year. Please refer to our new guidance here:
March 8, 2023 Update:
Most Ukrainians who came through the U.S.-Mexico border in March and April 2022 were given a “DT” admission class code on their I-94 Arrival/Departure Record and were granted humanitarian parole for one year. Unless they entered the U.S. on or before April 11, 2022, they are not eligible to apply for the current TPS term. For Ukrainians who are eligible for TPS but have not yet applied for or been granted TPS protection, their parole will expire when their I-94 authorized stay expires.
Historically, humanitarian parole was only granted to individuals who needed to enter for a specific humanitarian purpose on a case-by-case basis, such as to obtain medical treatment or to attend a funeral, and applications were submitted from outside of the United States. Starting in 2021, humanitarian parole began to be offered to large numbers of people from a single country at once, which dramatically increased the number of humanitarian parolees in the U.S. Unfortunately, the processes currently available to request re-parole or extension of I-94 stay were not designed to resolve expiring parole for large numbers of people from the same country at the same time.
As of now, there is no officially designated method for Ukrainian parolees to apply for re-parole or extend their I-94 stay. We expect to receive more definitive guidance by mid-March 2023.
While there are processes available through U.S. Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP), there are no definitive instructions from immigration agencies on which process should be used, and there is no clear consensus among immigration attorneys on how to properly use the existing application methods to request re-parole or an extension of I-94 stay. Therefore, using the currently available processes may not result in a timely response or a satisfactory result.
We understand from various sources that the Department of Homeland Security (DHS) is collaborating with U.S. Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP) to find a solution for Ukrainians and others with expiring humanitarian parole. We are told that a new streamlined process for re-parole could be implemented soon. We believe the new process for requesting re-parole will not require a U.S. sponsor, however, this has not been confirmed.
At this time, we don’t know when the new process will be implemented or how long adjudication will take. We also don’t know for how long re-parole will be granted. Finally, we don’t know which parolee admission classes (i.e., DT, UHP, others) will be eligible to use the new re-parole process.
We will continue to monitor the situation and speak with our contacts at immigration agencies. We will update our website with any substantive developments or new information on re-parole. Until we receive official guidance from immigration agencies or learn more information, we are unable to recommend any course of action.
For Ukrainians whose humanitarian parole is scheduled to expire soon, below are some potential avenues and/or protections that may help them remain in the United States:
Apply for Temporary Protected Status (TPS)
Pros: Approval allows parolees to remain and re-apply for employment authorization, pending TPS application stops unlawful presence
Cons: Only those paroled by April 11, 2022 are eligible, current TPS term expires Oct. 19, 2023
For Ukrainians whose parole expires before April 11 and who meet all the eligibility requirements for TPS, it is highly recommended that they file for TPS immediately if they haven’t filed already. Even if their TPS is not granted before their parole expires, if it is later granted, the period of authorized stay begins on the date of prima facie filing. Moreover, those with properly filed applications for TPS do not accrue unlawful presence while TPS is pending. If they have filed for TPS but have not received approval yet, then they can decide whether to wait for the new streamlined process or file Form I-131.
To learn more about TPS, read our article on TPS for Ukrainians.
To register for TPS, visit the USCIS page on TPS for Ukraine.
To obtain assistance with applying for TPS, sign up for a free remote TPS clinic on our Upcoming Events page or visit http://bit.ly/TPSClinics. As an alternative, you may request assistance from Lawyers for Good Government.
Apply for Re-Parole through USCIS
Pros: This process is approved by USCIS and has been used previously with success for individual applicants paroled for a specific purpose.
Cons: This process was not designed for use by large groups of applicants at once, such as Ukrainians paroled in 2022; processing could take 12+ months; applicants may need to show financial support from a U.S. sponsor.
Ukrainians may request re-parole through USCIS by filing Form I-131, Application for Travel Document. The filing fee is $575 per applicant. For best results, applicants should follow the exact instructions on the USCIS website for “individuals outside of the United States.” Applicants filing for themselves would check box 1e, while attorneys filing for clients would check box 1f. Applications should be clearly marked “Re-Parole” across the top of the application, per USCIS’ instructions, and should be sent to the address listed for “Humanitarian Parole Applicants.” Applicants who file an I-131 may want to include an I-134 Declaration of Financial Support and all required evidence. Although we were told by a senior USCIS official that re-parole applicants do not need to submit a Form I-134 sponsor application with their Form I-131, we cannot confirm that doing so would prevent processing delays or result in approval, since USCIS indicates that applicants who do not submit all required forms and evidence with their application may experience further processing delays.
Please note that this process could take a long time to get a response. Current processing times for Form I-131 are estimated at over 12 months.
Ukrainians who were issued a “Notice to Appear” (NTA) in immigration court or who are currently in removal/deportation proceedings (or Ukrainians who have been previously removed or deported) must submit a request to ICE via USCIS at the address listed for “Humanitarian Parole Applicants.” ICE has primary jurisdiction over requests for parole for individuals who are in removal/deportation proceedings.
Request Re-Parole or an Extension of I-94 Stay through CBP
Pros: Could result in a fast decision if the request is approved.
Cons: No guaranteed response; highly inconsistent results reported among CBP locations and officers; could result in a detrimental decision due to language barrier or unfamiliarity with the law.
Ukrainians with immediately expiring parole, or Ukrainians who were paroled for medical treatment (or other specific purpose) with a different admission class than “DT” may try to contact CBP to request an extension of their I-94 stay. To locate a CBP office or “deferred inspection site” that may be able to assist, visit the CBP website. You may be able to email or call one of the CBP offices listed to explain your request. Alternatively, it may be possible to meet with a CBP office at the original “port of entry” or airport where the parolee first entered the United States.
Please note that Ukrainians who have tried to request re-parole or extension of I-94 stay through CBP have experienced highly inconsistent results and even detrimental actions after meeting with CBP officers. Therefore, please use caution when requesting an action directly from CBP.
Wait for USCIS or DHS to Announce a New Process for Re-Parole
Pros: Could be an efficient and inexpensive solution, may not require a sponsor
Cons: If parole expires before a new process is implemented, parolees risk unlawful status and accruing unlawful presence; some parolee admission classes may not be eligible to use the new process initially.
We are told that DHS is collaborating with USCIS and CBP to find a solution for Ukrainians and others with expiring humanitarian parole. It is possible that a new streamlined process for re-parole could be implemented soon. We believe the new process for requesting re-parole will be more efficient than current processes and will not require a U.S. sponsor. However, we don’t know when the new process will be implemented or how long adjudication will take. We also don’t know for how long re-parole will be granted. Finally, we don’t know which parolee admission classes (i.e. DT, UHP, others) will be eligible to use the new re-parole process.
We expect to receive more definitive guidance on the new solution by mid-March 2023.
Apply for Uniting for Ukraine with a Sponsor
Pros: Relatively high approval rate, 2-year parole, access to benefits and employment authorization
Cons: Requires a U.S. sponsor, requires current parolees to depart the U.S. with no guarantee of re-entry
Many Ukrainians with expiring DT-class parole are eligible to apply as beneficiaries through the Uniting for Ukraine program. Currently, Ukrainians who are approved for Uniting for Ukraine may be paroled for up to 2 years and are eligible for a number of benefits, including employment authorization and federal assistance. To learn more about this program, find out who is eligible, and read about the application process, visit our FAQs on Immigration Topics. Ukrainians must have a ready, willing, and able sponsor and meet all the other eligibility requirements for the program. In addition, Ukrainian beneficiaries who are currently in the United States must be willing to leave the U.S. before applying.
Please note that Ukrainians who are approved as beneficiaries for Uniting for Ukraine and issued travel authorizations still face a potential risk of being denied re-entry, since CBP has authority to decide whether or not to allow someone to enter the U.S. Thus, Ukrainian parolees who are already present in the U.S. should use caution when departing the U.S. without first applying for and receiving an Advance Parole Travel Document.
For more information on Uniting for Ukraine, visit the USCIS page for Ukraine. Current processing times for the initial sponsor application are estimated at 6-8 weeks, not including beneficiary procedures and security vetting.
Apply for a Family-Based Adjustment of Status
Pros: Proper filing stops accrual of unlawful presence; approval provides a pathway to permanent residence and U.S. citizenship
Cons: Can take years to process and has narrow eligibility categories
Ukrainian parolees who have specific categories of closely related family members who are U.S. citizens or lawful permanent residents (LPR) could be eligible.
There are two types of family based pathways: U.S. Citizen Immediate Relative visas and U.S. Citizen/LPR Family Preference visas.
Immediate Relative (U.S. Citizen) immigrant visas have no limit to the annual number of visas that can be issued. Processing time is faster, but the eligible categories are narrow. Immediate relatives are:
- The Ukrainian spouse of a U.S. citizen;
- The unmarried Ukrainian child under 21 years of age of a U.S. citizen; or
- The Ukrainian parent of a U.S. citizen (if the U.S. citizen is 21 years of age or older).
Thus, Ukrainians who have the below immediate relatives may be able to qualify for an Immediate Relative visa:
- U.S. citizen spouse
- U.S. citizen parent (only if the Ukrainian child is under 21 years old and unmarried)
- U.S. citizen child if the parent is at least 21 years old
Family Preference (U.S. Citizen or Lawful Permanent Resident (LPR)) immigrant visas have a limited number of visas available each year. Processing takes much longer than for U.S. Citizen immediate relatives — it could take years. Family Preference categories are:
- First preference (F1) – unmarried sons and daughters (21 years of age and older) of U.S. citizens;
- Second preference (F2A) – spouses and children (unmarried and under 21 years of age) of lawful permanent residents;
- Second preference (F2B) – unmarried sons and daughters (21 years of age and older) of lawful permanent residents;
- Third preference (F3) – married sons and daughters of U.S. citizens; and
- Fourth preference (F4) – brothers and sisters of U.S. citizens (if the U.S. citizen is 21 years of age and older).
Thus, Ukrainian parolees who have one of the below relatives may be able to qualify through a Family Preference category:
- U.S. citizen parent of a Ukrainian national (if the Ukrainian is at least 21 years old)
- U.S. citizen mother-in-law/father-in-law of a Ukrainian national (if the Ukrainian is at least 21 years old and married to the U.S. citizen’s son/daughter)
- U.S. citizen’s brother/sister who is at least 21 years old
- U.S. Lawful Permanent Resident’s Ukrainian spouse
- U.S. Lawful Permanent Resident’s Ukrainian parent (if the U.S. child is under 21 years old)
- U.S. Lawful Permanent Resident’s Ukrainian parent (if the U.S. child is married and at least 21 years old)
The first step in sponsoring a Ukrainian relative is for the U.S. relative to file Form I-130, Petition for Alien Relative. This establishes the qualifying relationship between the petitioner (U.S. citizen/Lawful Permanent Resident) and the beneficiary (Ukrainian family member to be sponsored). Filing a petition creates a place in the visa queue for the Ukrainian family member.
After USCIS receives this petition, USCIS assigns a priority date in the Approval or Receipt Notice. The beneficiary family member will then have to wait their turn in the line for a visa to become available when their priority date comes up. If the Ukrainian beneficiary is a Family Preference relative, the number of visas per year will be capped at a certain number determined by Congress.
For example, the Fourth (F4) family preference category of “Brothers and Sisters of Adult U.S. Citizens” only provides 65,000 visas per year. Hence, it can take several years to obtain a visa. Current visas available for applicants in the Brothers and Sisters category have a priority date (i.e. sponsor petitions were filed) earlier than March 2007.
Once the beneficiary’s priority date is listed in the visa bulletin that is published each month, they can apply for a visa. If they are still in the U.S. at that time, they would file Form I-485, Application to Register Permanent Residence or Adjust Status, to apply for a green card. They would include a copy of the Form I-797, Approval or Receipt Notice for the Form I-130 petition filed on their behalf, as well as all the required documents and affidavits listed here: https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-family-preference-immigrants.
If the applicant is outside of the U.S. by that time, the National Visa Center (NVC) will notify the petitioner and the beneficiary when the visa petition is received, and again when an immigrant visa number is about to become available. They will also notify the beneficiary when they must submit immigrant visa processing fees and supporting documentation. The beneficiary will then schedule an interview at the U.S. consulate. The consular office will process the case and decide if the beneficiary is eligible for an immigrant visa. If they are granted a visa, they will be able to come to the U.S., be inspected, pay the processing fees for a green card, and receive a green card by mail.
Parolees may apply for both adjustment of status and other immigration statuses or protections. To learn more about other pathways for changing/adjusting status, visit our FAQs on Immigration Topics and scroll down to the section on “Immigrant Visas and Permanent Residence in the U.S.”
Please note that some applications for adjustment of status could take years to process and are not guaranteed to be approved. It is therefore recommended that Ukrainians whose parole expires soon explore additional channels if they wish to remain in the U.S.
At this time, most humanitarian parolees will not qualify for either Adjustment of Status through an employment-based immigrant visas (permanent residence) or a Change of Status through employment-based nonimmigrant visas (temporary workers) due to legal restrictions of their entry into the United States. Ukrainians who wish to pursue these avenues will most likely need to depart the United States and apply through a U.S. consulate abroad.
Apply for Asylum
Pros: Proper filing stops accrual of unlawful presence, confers certain rights, protections, and access to benefits
Cons: Challenging legal requirements for many Ukrainians to meet, approval could take years, high denial rate
Some Ukrainians may have a viable claim for asylum. Asylum is a form of protection that allows individuals to stay inside the United States instead of being deported to their home country or a different country where they fear persecution or harm. Asylum seekers must establish that they have been persecuted or have a well-founded fear of persecution because of their race, religion, nationality, membership in a particular social group, or political opinion if returned to their country. They must prove that the harm is from the government of their home country, or, from some person or group that the government of their home country cannot protect them from. To be eligible for asylum, the persecution must also be significant, such as unlawful or political detention, torture, violation of human rights, physical violence, or some type of severe non-physical harm.
Presently, fleeing war or violence in one’s home country is not a sufficient qualification for asylum protection in the United States absent other qualifying factors. For this reason, many Ukrainian nationals fleeing war could have difficulty meeting the requirements for asylum. However, each asylum application is considered individually based on the applicant’s unique facts and circumstances. For more information on asylum eligibility and how to apply, please visit our article on Asylum for Ukrainians.
A person who is not in removal proceedings may apply for “affirmative asylum” through USCIS within 1 year of their most recent arrival into the United States. If the USCIS asylum officer does not grant the asylum application and the applicant does not have a lawful immigration status, the applicant is referred to the immigration court for removal proceedings, where they may renew the request for asylum through the defensive process and appear before an immigration judge. A person who is already in removal proceedings may apply for “defensive asylum” by filing the application with an immigration judge at the Executive Office for Immigration Review (EOIR).
Please note that asylum applications can take 4-5 years to adjudicate. As of this writing, there are over 1.6 million asylum applications in the pipeline. In addition, there is a significant risk of being denied asylum. Thus, individuals who wish to apply for asylum are also advised to pursue other routes or protections such as re-parole and TPS. On the plus side, an individual who properly files an asylum application does not accrue unlawful presence while the application is pending. In addition, a properly filed asylum application eventually gives the applicant certain rights, protections, and access to benefits (including employment authorization), even while their application is pending.
Ukrainians who wish to apply for asylum are strongly encouraged to consult a qualified immigration attorney with experience in asylum law.
Apply for Withholding of Removal/Deferral of Removal under the Convention Against Torture
Pros: Few bars to eligibility, less restrictive reasons for fear of torture
Cons: Does not confer all the benefits of other protections such as asylum application, re-parole, or TPS
Ukrainians who have immediately expiring parole but do not wish to apply for asylum may consider applying for withholding of removal or deferral of removal under the U.N. Convention Against Torture (CAT). Applicants must demonstrate it is more likely than not that they will be tortured (mentally or physically) by their government or someone acting with the acquiescence of the government if removed to their country of origin. There are few bars to eligibility, and applicants are not required to establish that their fear of torture is on account of race, religion, nationality, political opinion, or membership in a particular social group.
An application for withholding/deferral of removal under CAT can be filed (and often is filed) in conjunction with an application for asylum, in case the asylum application is not approved. However, relief under CAT can only be granted by an immigration judge. If approved, withholding/deferral of removal under CAT does not confer all the same benefits as asylum, but a person granted relief under CAT may apply for employment authorization.
This information is intended for educational purposes only and should not be taken as legal advice. By reading this, you agree that this information is not a substitute for legal counsel and does not establish an attorney-client relationship. Please consult a qualified attorney to discuss your own situation and to obtain assistance with specific matters.
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