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 for urgent humanitarian reasons between February 24 and April 25, 2022 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.
Ukrainians who were granted humanitarian parole for only one year in the spring of 2022 are unable to receive timely re-parole or extend their stay in the United States. In addition to losing lawful status and becoming at risk for deportation, Ukrainians who cannot obtain re-parole soon risk losing their employment authorization, medical insurance, and other federal benefits that were granted based on their parole status.
The Ukraine Immigration Task Force has outlined a summary below of the challenges caused by the current regulations and processing delays. We are also proposing specific regulatory actions that would enable Ukrainians whose parole expires soon to quickly and easily apply for re-parole, maintain their employment authorization, and continue to have access to benefits for which they are currently eligible.
Our most recent communications with regulators indicate an announcement may be forthcoming soon on how the immigration agencies intend to deal with this pressing issue. We are hopeful to receive this announcement by March 2023, but we do not yet have any insight on when a new re-parole process will be implemented. We believe the primary focus will be to assist Ukrainian parolees who entered the United States between April 12 and April 25, as they are not eligible to apply for the current TPS term.
Scroll down to read our re-parole talking points. For more information about this and other advocacy topics, contact us at [email protected].
Photo of Ukrainians in Tijuana, Mexico in April 2022. Used with permission from Ukraine Now.
RE-PAROLE FOR UKRAINIANS: LEGAL BACKGROUND, CHALLENGES, AND SOLUTIONS
Issue Summary and Proposed Regulatory Actions:
The Re-Parole Problem and Whom It Affects
- Almost 23,000 Ukrainians were paroled into the United States between February and April 2022. Over 20,000 were paroled in April 2022 alone. Virtually all of them were paroled for only 1 year and given a “DT” admission code on their I-94 Arrival/Departure Record.
- Of these, approximately 10,000 were paroled between April 12 and April 25, 2022. They do not qualify for Temporary Protected Status (TPS).
- Their parole, employment authorization, and eligibility for benefits will expire when their I-94 authorized stay expires.
- Of the over 13,000 Ukrainians paroled on or before April 11, 2022 (including over 3,000 in March 2022), they are eligible to apply for TPS if they meet the other legal criteria.
- We estimate that up to 20% of those eligible have not applied for TPS because they lack access or funds to get legal assistance, or they did not know about TPS until recently. We are doing extensive outreach to these Ukrainians to provide free assistance with applying for TPS.
- However, current TPS processing takes 6-8+ months, so many of the eligible Ukrainians who already applied for TPS have not yet received it.
- For those that have or will receive it, the current TPS protection expires after October 19, 2023.
- Their parole, employment authorization, and eligibility for benefits will expire when their TPS expires.
Regulatory and Procedural Challenges
- Currently, there is no designated official process Ukrainians can use to quickly receive re-parole/extension of stay or extend their employment authorization and benefits.
- Multiple agencies have jurisdiction over parole/re-parole depending on the source/purpose of the original parole and the legal status of the parolee at the time of application.
- Current regulatory guidance provides that the agency that adjudicated and granted the original parole is authorized to adjudicate and grant re-parole. However, each agency’s process is handled using a different application and/or adjudication procedure.
- None of the existing processes are designed for the situation of large-scale re-parole that we face now.
- USCIS does not have original jurisdiction to re-parole Ukrainians who entered through the southern border. Ukrainians may apply, but the current process through USCIS is very costly, requires a U.S. sponsor, and takes 10-14 months.
- CBP has original jurisdiction to re-parole such Ukrainians. But there is no defined process or consistent results.
- Unfortunately, Ukrainians who have tried to obtain re-parole or extension of their stay directly though CBP have been largely unsuccessful.
- Some Ukrainians who approached CBP even had their parole terminated and were placed in removal/deportation proceedings.
Regulatory Actions that Would Help Ukrainian Parolees Remain in the U.S. Lawfully and Safely
- DHS can transfer authority from CBP to USCIS for purposes of re-parole applications for Ukrainian humanitarian parolees who received DT parole.
- DHS/USCIS can create a streamlined, equitable, and efficient process for Ukrainian parolees to request re-parole and obtain an automatic extension of employment authorization upon submission of a request for re-parole.
- USCIS can reduce the processing backlog for TPS applications and accompanying employment authorization applications.
- DHS/USCIS can issue guidance to benefits granting agencies to ensure continuity in eligibility and access to federal, state, and local benefits for Ukrainian parolees who apply for re-parole.
- The Secretary of Homeland Security can redesignate Ukraine for TPS to allow currently ineligible Ukrainians to apply for protection. Even those who are eligible for the current term are only protected through October 19, 2023.
- USCIS can authorize Ukrainians who are granted re-parole to also have permission to travel internationally and return. Current parolees may only travel after filing for an advance travel document. This costs $575 per application and takes 8-10 months for approval. Ukrainian parolees who depart the U.S. without advance travel authorization will automatically terminate their parole.
- DHS/USCIS can issue a policy memo or practice guidance that allows Ukrainian humanitarian parolees to be able to apply for a nonimmigrant visa (e.g., student, temporary worker) or employment-based immigrant visa without consular processing, as TPS holders are allowed to do. Currently, humanitarian parole is not considered “lawful admission” for the purpose of a nonimmigrant Change of Status or an immigrant Adjustment of Status.
Updates from Agencies
We understand from the USCIS Office of the Director, the USCIS Chief of the International and Refugee Affairs Division at the Asylum and International Operations Directorate (RAIO), and our CBP liaisons that DHS has been in discussions with USCIS and CBP since late 2022 to find a solution for Ukrainians and others with expiring humanitarian parole. We are told USCIS is developing a new streamlined application process for re-parole, and that this will be a multi-agency effort overseen by DHS that involves collaboration between USCIS and CBP.
Separately, we are told by our CBP liaisons that CBP has jurisdiction to re-parole Ukrainians paroled with a “DT” admission class code at the southern border. CBP indicated that the actual port of entry (e.g., the San Ysidro office) should handle their re-parole request. CBP indicated they are working with local USCIS offices in the affected areas to clarify this jurisdiction issue.
Neither USCIS nor CBP has communicated a suitable solution to stakeholders to date. Our most recent communications with regulators indicate an announcement may be forthcoming soon on how the immigration agencies intend to deal with this pressing issue. We are hopeful to receive this announcement by March 2023, but we do not yet have any insight on when a new re-parole process will be implemented. We believe the primary focus will be to assist Ukrainian parolees who entered the United States between April 12 and April 25, as they are not eligible to apply for the current TPS term.
Consequences of Expired Parole
- Losing Employment Authorization
- Ukrainians who have employment authorization through their parole will no longer have employment authorization after their parole expires, unless they can obtain it through another channel (e.g., TPS, asylum application, or other means).
- Losing Federal and/or State Benefits
- Ukrainian parolees may lose eligibility for federal assistance programs benefits such as Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), or Refugee Cash Assistance (RCA), health insurance through Medicaid, and food assistance through Supplemental Nutrition Assistance Program (SNAP).
- In addition, those with expired parole could potentially lose eligibility for certain state benefits such as a drivers’ license or state/local assistance programs, depending on the laws of that state or municipality.
- Placement in Removal/Deportation Proceedings
- After a person’s parole period expires, they are not in lawful status. Individuals who are inside the U.S. without a lawful status could be in danger of being removed/deported.
- While there is not currently a major risk of Ukrainians being deported to Ukraine, this could change in the future.
- However, Ukrainians with expired parole may be placed in removal proceedings and issued a Notice to Appear (NTA) in immigration court.
- Being Denied Re-Entry into the United States
- Staying in the U.S. for more than 180 days without permission consecutively could prevent someone from being allowed to return to the U.S. for 3 years after they leave, while staying for up to 1 year consecutively without permission may result in a re-entry bar for 10 years.
- A person who remains in the U.S. without permission for more than 1 year risks being permanently denied entry back into the U.S., which will be very challenging to overcome.
- This could happen even if the person who overstays is married to a U.S. citizen or lawful permanent resident, or who has other immediate family members that are U.S. citizens.
- Denial of Future Immigration Applications
- A person who remains in the U.S. without a lawful status could be denied future immigration applications. These include applications for employment authorization, adjustment of status, student or visitor visas, and immigrant visas.
- It could also result in being denied for entry through the Uniting for Ukraine program.
- Additionally, working without valid employment authorization could also result in being denied future immigration applications and access to programs such as Uniting for Ukraine.
- A Flood of Rushed Asylum Applications
- Ukrainians who are desperate to maintain lawful status and continue working are increasingly begging attorneys to file asylum applications for them. A person with a properly filed asylum application is eligible for employment authorization and other benefits through federal and state governments, even before or if they are granted asylum.
- For some of those Ukrainians, asylum is not the ultimate goal, since they would like to return to Ukraine once it is safe for them to remain there. This means safety from the physical damage of war as well as from rogue factions, human rights abuses, and other threats to vulnerable individuals. Unfortunately, asylum is the only method known to them to find that safety.
- Ukrainians who choose this option must file for asylum within 1 year of entering on parole. As a result, there is a lot of demand right now for assistance with asylum. But asylum is an expensive lengthy process for Ukrainians and their attorneys. Current processing times could take 4-6 years given the over 1.6 total asylum applications already filed.
- Although many Ukrainians can make a viable argument for asylum, not all Ukrainians in the U.S. will be able to compile or produce evidence sufficient to support a strong asylum case at the merits hearing. Furthermore, attorneys who try to assist Ukrainians with asylum applications struggle to meet the legal challenges of asylum’s narrow criteria.
- Additionally, it does not benefit the U.S. government to add a surge of asylum applications from Ukrainians to its already overflowing pipeline. If the U.S. government acts quickly to provide a procedure for re-parole, fewer Ukrainians would be effectively forced to file asylum applications
Current Mechanisms Available
- Ukrainians may request re-parole through USCIS by filing Form I-131, Application for Travel Document.
- The filing fee is $575 per applicant. This could add up to $1,100 to $1,600+ for some families.
- Current applicants through this process are required to file a Form I-134 sponsor application with their Form I-131.
- Current processing times for Form I-131 are estimated at 10-14 months.
- Ukrainians may contact CBP by email to request re-parole or an extension of I-94 stay.
- This method rarely results in either re-parole or an extension of stay, as it is designed to correct I-94 mistakes rather than grant parole extensions.
- Many Ukrainians don’t even receive a response after emailing CBP.
- Ukrainians may make an in-person appointment at a CBP office, ideally at their original ports of entry. (e.g., the San Ysidro, CA office) to request parole extensions or re-parole.
- This is not logistically feasible for the numerous Ukrainians who have relocated far away from their original port of entry.
- Most Ukrainians who have met in-person with CBP officers have not been granted re-parole.
- Some Ukrainians have experienced detrimental results by using this method such as having their existing parole terminated and being placed in removal/deportation proceedings.
- In fact, our Task Force has received reports of Ukrainians who have visited CBP offices to request re-parole, and this has resulted in their existing parole being terminated.
- We have at least two reports of Ukrainians who were immediately placed in removal/deportation proceedings and issued Notices to Appear (NTA) charging documents to appear in immigration court. Unless they can successfully argue that they qualify for asylum, they are in danger of receiving an order of removal from the United States.
Problems and Limitations of Current Mechanisms
Current mechanisms for requesting re-parole or an extension of stay were designed for the traditional purpose for humanitarian parole. Until 2021, humanitarian parole was used principally to allow individuals who could not otherwise come to the U.S. quickly to enter for an urgent, specific humanitarian purpose on a case-by-case basis (e.g., to obtain medical treatment, attend a funeral, participate in legal proceedings). Applicants usually needed to apply from outside of the U.S. and get permission to enter.
Starting in 2021, when humanitarian parole began to be offered to Afghans as a group, large numbers of people from a single country began to enter at one time. Many of these Afghans also have expiring parole in 2023. They face the same challenge with respect to lack of mechanism to extend humanitarian parole.
**As of now, there is no officially designated method or agency instructions for Ukrainian parolees to apply for re-parole or extend their I-94 stay.** This is due in part to the deficiencies of current immigration processes that fail to provide adequate procedures for this situation. The problem is compounded by the fact that multiple federal agencies have jurisdiction over the parole process. This prevents standardized or efficient mechanisms from being implemented and complicates inter-agency miscommunication on this subject.
USCIS, ICE, and CBP exercise concurrent parole authority over initial parole.
- USCIS Humanitarian Affairs Branch (HAB) authorizes parole for noncitizens outside the United States for many reasons, including humanitarian situations.
- ICE also authorizes parole for noncitizens outside of the United States for many reasons, including law enforcement and intelligence purposes, as well as to release detained noncitizens from custody.
- CBP authorizes parole at United States ports of entry, including pre-flight inspection facilities.
USCIS indicates there is no provision in the regulations to “extend” parole for individuals who are present in the United States. U.S. regulations provide that a person’s parole ends on the date the parole period expires or when the person departs the U.S. (if prior to the expiration of their parole).
Official regulatory guidance provides:
“If a bureau has previously adjudicated and granted parole to an individual, the issuing bureau should, in the interest of efficiency, adjudicate requests for re-parole, unless:
(1) the circumstances or intent of the parole have changed such that additional factors render the bureau inappropriate to adjudicate the new application, or
(2) another bureau agrees to assume a particular caseload in the interest of expediency or settled local practice.
To discourage forum-shopping by parole-requesters, engender inter-bureau comity, promote consistency of case adjudication, and preserve resources, the bureaus adopt the following case management rule: If a bureau identifies a request that was previously denied on the merits by another bureau, the second receiving bureau will refer such a request back to the bureau that originally adjudicated and denied parole.
There may, however, be situations where it is inappropriate for one bureau to grant a parole, whereas the same applicant may and possibly should be granted parole by another bureau at a different time, location, and/or under different factual or procedural circumstances. In such a case, the second bureau to receive the parole request may elect to adjudicate the new request after consultation with the original bureau.”
USCIS HAB has authority to re-parole a noncitizen if the initial parole authorization was issued by USCIS HAB.
- Technically, Ukrainian parolees who entered between February and April 2022 were paroled through CBP ports of entry rather than by request of USCIS, so CBP has original jurisdiction over their parole.
- At this time, due to the lack of any other processes, USCIS has agreed to review applications for re-parole from Ukrainians paroled at the U.S. southern border.
- A request for re-parole to USCIS requires the filing of a complete parole application package, including Form I-131 Application for Travel Document, Form I-134 Declaration of Financial Support, accompanying evidence supporting the need for re-parole, and a nonrefundable fee of $575 per applicant requesting re-parole.
- However, applications for re-parole take 10-14 months to process by USCIS.
ICE has primary jurisdiction over requests for (re)parole for individuals who are in removal/deportation proceedings.
- Some early Ukrainians who entered the U.S. between February and the first few days in April were issued a “Notice to Appear” (NTA) when they were paroled. This means they must appear in immigration court to defend themselves in removal/deportation proceedings. There are also a handful of Ukrainians who previously entered the United States and were removed/deported.
- Ukrainians in this category must submit a request to ICE via USCIS at the address listed for “Humanitarian Parole Applicants.”
CBP has original jurisdiction over noncitizens who are paroled at a port of entry.
- Technically, CBP has jurisdiction over Ukrainian parolees who entered between February and April 2022 through the U.S. southern border.
- However, there is no standardized or safe process for Ukrainians to request re-parole or an extension of stay through CBP.
- Many Ukrainian parolees have tried contacting CBP for parole extensions, and with the exception of a few cases, CBP’s general response was that Ukrainian parolees should look to USCIS for extension of their parole.
- Some Ukrainians have approached CBP offices in their original ports of entry (e.g., the San Ysidro, CA office) to request parole extensions or re-parole.
- Most have not been granted either of those, and some Ukrainians have experienced detrimental results, including termination of their parole and being placed in removal/deportation proceedings.
Official regulatory guidance provides:
“In the event that the parole unit staff of the bureaus are unable, within one work day, to agree upon proper case assignment, the receiving bureau(s) will refer the case to their respective bureau deputies — USCIS Deputy Director, ICE Deputy Assistant Secretary, and CBP Deputy Commissioner – or their designees to confer on case assignment. If the deputies (or designees) cannot concur upon case assignment within one additional work-day, the case will be referred to the Deputy Secretary of DHS, or designee, for assignment.”
Given the lack of agency communication about the status or estimated implementation date of the new re-parole application mechanism that is said to be in the works, we do not know how the jurisdictional dynamics are playing out between the agencies responsible for parole/re-parole. To date, there has been no proactive outreach to Ukrainian parolees or to the legal community as to how the agencies intend to handle re-parole for Ukrainians.
In summary, Ukrainians who were granted humanitarian parole for only one year are unable to receive timely re-parole or extend their stay in the United States. In addition to losing lawful status and becoming at risk for deportation, Ukrainians who cannot extend their parole soon risk losing their employment authorization, medical insurance, and other federal benefits that were granted based on their parole status.
This information is provided for general educational purposes only. It is not intended to be taken as legal advice and does not establish an attorney-client relationship.