U.S. citizens hoping to bring their Ukrainian parents, children or employees to America are finding that threats from bombs and bullets count little in the complex U.S. immigration system.
Visas routinely given to students on holiday aren’t available to Ukrainians who don’t know when they can go home, or if their home will even be there. U.S. consulates in the country are closed, and those in neighboring countries are so jammed that the State Department says displaced people should head to Frankfurt, Germany, to apply for longshot visas or finish applications already in progress.
And while U.S. refugee laws cover those persecuted over their ethnic, sexual or religious identities, they lack a mechanism to quickly and efficiently take in civilians displaced by invasion, immigration attorneys say. The Biden administration has granted Temporary Protected Status to about 70,000 Ukrainians already in the United States, but that does nothing for those seeking to get here.
“There is not a visa that says when war breaks out in your country you can turn to the United States,” Indiana immigration attorney John Broyles said. “We have this menu of visas available, and you have to try to figure out the one that best fits.”
As President Joe Biden pours millions of dollars into Poland, Moldova and other European countries to deal with the crushing influx, advocates are pressuring him to take emergency action to let them come to the U.S. Some recall that the U.S. helped Jews and Christians flee Ukraine and other parts of the Soviet Union during the Cold War.
“In 1999, the Clinton-Gore administration shared responsibility with Europe by overcoming all bureaucratic obstacles to quickly welcome 20,000 Kosvars who fled to Macedonia, proving that when the White House has the will to urgently resettle refugees, it can find a way,” the Conference of Presidents of Major American Jewish Organizations said in a letter to Biden last week, first published in the Israeli newspaper Haaretz. “Those with close family in America should be able to wait with their loved ones in the United States until it is safe to return to Ukraine.”
Immigration attorneys say that, while they agree with the sentiment, that’s easier said than done for many reasons.
The U.S. system is cumbersome and layered, with the State Department, the Department of Homeland Security and U.S. Customs and Immigration Services each having roles in the process from application to arrival on U.S. soil.
Biden inherited an immigration system with steep staff shortages and backlogs of up to a year for some visa approvals. Former President Donald Trump cut the number of refugees allowed each year to 15,000, the smallest number in history, although Biden has increased that figure to 125,000.
Also, advocates and attorneys said, one tool for letting refugees into the U.S. conditionally — the so-called “parole” system — has been limited by Congress and sparked a lawsuit in January by states including Texas after the Biden administration applied it to some child migrants from Central America.
“There is not enough flexibility that exists in our statutes. Congress restricts the use of the parole authority and requires case by case assessment,” said Lenni Benson, Distinguished Chaired Professor of Immigration and Human Rights Law at New York Law School.
Not Like Afghanistan
The U.S. acted swiftly to evacuate more than 120,000 people from Afghanistan in a matter of weeks after ending its military presence there. But there are key differences between that situation and Ukraine’s.
Many of those evacuated from Afghanistan had worked with American soldiers and international aid officials for many years, and had already started the approval process for them and their families.
Those brought to the U.S. included judges, women’s rights leaders and others who faced extreme danger as the Taliban assumed control of the country, making them eligible for protected status under immigration laws.
None of those protections apply to Ukrainians who managed to escape a war zone or those still stuck in one, said Ellen Freeman, an immigration attorney in Pittsburgh. She came to the U.S. from Ukraine in the 1990s under a law passed by Congress to help persecuted Jews and Christians escape the Soviet Union.
“Many of the people from Afghanistan were granted parole in place of asylum or refugee status, which would take many years to approve,” Freeman said. “They have no place to return to, because they wouldn’t just be persecuted, they would be executed.
“In Ukraine, there is war and horrible conditions, but the people are not persecuted,” Freeman said. “Unless you are the mayor of Mariupol who is kidnapped by Russians. I’m sure he’s being persecuted.”
Special Parole Status
Congress could create a special parole status for Ukrainian refugees that would allow them in the U.S. while their cases are processed, and the Biden administration could allow Ukrainians to live with immediate relatives here, either through executive order or expanding existing rules, attorneys said.
So far, the U.S. government has given no indication that it’s ready to take such steps. White House Press Secretary Jen Psaki said Thursday that the administration believes most of the immigrants don’t want to come to the U. S., preferring to remain close to their homes.
She said the U.S. is doing all it can to support Eastern European countries “who have set up really remarkable systems for welcoming these refugees at a really challenging and difficult time.”
“That’s why we have been providing our humanitarian assistance to these countries and to Ukraine directly, in order to help augment the support in — in the best way possible,” Psaki said.
Asked repeatedly by emails over several days about the possibility of allowing parole or other measures for Ukrainians to come to the U.S., spokespeople for the State Department, Homeland Security and Customs repeatedly deferred to each other, saying others would be better equipped to answer.
Immigration lawyers said they are trying to find creative solutions within existing law as they field desperate calls from families and employers. Those include visas for students and education, work, management and investors, Benson said.
“There are no simple solutions, certainly not with the tools we have now; refugees can’t just go to the consulate in Poland and say I want to go to the U.S. as a refugee,” Connecticut immigration attorney Aleksandr Troyb said.
Troyb said he has been working with an American trying to get his Ukrainian bride to join him. The couple was in Ukraine last month, but hadn’t completed the visa application process before war broke out.
“This is a real life example of someone doing everything by the book, and all of a sudden the book has changed,” Troyb said.
Broyles, the Indiana attorney, managed to get a Ukrainian employee of a U.S. non-profit to Texas on Thursday — but only because the 24-year-old worker had a pending application in the system. He was able to get the woman a hearing in Riga, Latvia, which granted approval for the worker to emigrate.
If the worker hadn’t already applied, he said, none of the many humanitarian options the employer wanted would have been available.
“What does the U.S., as a society, want to do? Are we willing to turn a blind eye and say let Poland and the EU handle this,” Troyb said. “If we do want to help, then the administration and Congress can do something. Talking about doing something and making the changes needed to do something are two different things.”