The Biden Administration Should Extend Protection to Ukrainians Living in the United States

In the wake of the Russian invasion of Ukraine, the Biden administration is considering extending Temporary Protected Status (TPS) or Deferred Enforced Departure (DED) to Ukrainian nationals in the United States. Section 244(b)(1) of the Immigration and Nationality Act vests the Secretary of the Department of Homeland (DHS) with the authority to designate nations for TPS based on armed conflict, environmental disaster, or other extraordinary and temporary conditions that prevent their safe return home. DED is a form of executive discretion not to remove nationals of select countries, typically because they would be at grave risk if returned to their home countries. Because Ukrainian nationals in the United States would be at grave risk if returned, the Biden administration should move with all deliberate haste to designate them for TPS or DED. Nationals from other countries in the region would also likely be at risk if returned and DHS should likewise consider these countries for TPS or DED.

The Center for Migration Studies of New York (CMS) estimates that roughly 28,000 Ukrainian nationals in the United States would be eligible for TPS or DED, with smaller numbers from Latvia, Lithuania, and Belarus (Table 1).  

The National TPS Alliance, more than 500 college and university presidents, the American Immigration Lawyers Association, the Catholic Legal Immigration Network, Inc., and the US Committee for Refugees and Immigrants have all called on the administration to provide one of these types of protection. CMS derived these estimates from detailed data collected in the US Census Bureau’s 2019 American Community Survey. CMS assigned legal status to each noncitizen in the survey based on its methodology described in Warren (2021). Detailed estimates are available for populations by country of origin and legal status at the national, state, county, and metropolitan area level. CMS estimates that 619,400 residents from Burma, El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, Venezuela, and Yemen are potentially eligible for TPS.  In addition, 192,200 Venezuelans, 9,300 Hong Kong residents, and smaller numbers of Liberians are potentially eligible for DED.

While a necessary step, TPS and DED do not themselves lead to permanent status. Moreover, they cannot be used to admit Ukrainians from abroad, including potential US visa beneficiaries based on their close family relationships to a US citizen or a lawful permanent resident. To address the massive displacement anticipated by this crisis, the Biden administration will need to ramp up a range of programs for Ukrainians, including humanitarian parole, refugee resettlement, and various legal migration options. The United States will also need to provide large-scale support for the countries hosting displaced Ukrainians abroad.

References

Kerwin, Donald, José Pacas, and Robert Warren. 2022.  “Ready to Stay: A Comprehensive Analysis of the US Foreign-Born Populations Eligible for Special Legal Status Programs and for Legalization Under Pending Bills.” Journal on Migration and Human Security, https://doi.org/10.1177/23315024211065016

Warren, Robert. 2021. “In 2019, the US Undocumented Population Continued a Decade-Long Decline and the Foreign-Born Population Neared Zero Growth.” Journal on Migration and Human Security: 9(1): 31-43. https://journals.sagepub.com/doi/full/10.1177/2331502421993746

February 25, 2022