Ukraine: Why TPS Alone Is Not Enough

The United States swiftly granted Temporary Protected Status (TPS) to Ukraine and that is commendable. Yet, it is not enough.

Flag of Russia and Ukraine painted on a concrete wall. Relationship between Ukraine and RussiaThe invasion of Ukraine continues to horrify the world. Senseless attacks on civilians, on women, and on children are causing outrage for all of us watching from afar — feeling helpless and heartbroken. Many neighboring countries have opened their borders with welcoming arms and some have waived regular protocols to accommodate Ukrainian refugees. The United States swiftly granted Temporary Protected Status (TPS) to Ukraine and that is commendable. Yet, it is not enough. We can and should do more.

TPS applies only to those who are already in the U.S. and serves as a lifeline for them. Many are people who came here on student or tourist visas or one of the various types of work visas. News reports suggest that about 30,000 Ukrainians now in the U.S. are likely eligible for TPS. As long as a Ukrainian citizen has continuously resided in the U.S. since March 1, 2022, they can apply for TPS.

But while that is a relief for many, it doesn’t solve the broader problem for Ukrainian refugees who want to get out of harm’s way and join family and friends here in the United States.

To demonstrate the challenges, I share the story of my client, Alex. The day following Russia’s brutal attack on Ukraine in late February, Alex fled the country with his wife, two children, and his mother-in-law. The five of them crossed the border and entered Moldova. The trip from Odessa, Ukraine, which normally would have taken a couple of hours, took them all day — most of the time spent waiting at the border. At that time, when the war was still new, that wait felt like an eternity. Alex recalls the endlessly long lines, mothers clutching the hands of children, people appearing desperate and sad and scared. He feels lucky they were able to get out when they did.

He already had a B1/B2 tourist visa in his passport, as did his wife and children. But not his mother-in-law. Given the tight timeline they faced, they made the difficult and painful decision to leave her behind with strangers in Moldova and continue on to the U.S where his brother lived. When they were finally able to get plane tickets to the U.S., they learned that they would be flying out of neighboring Romania, 10 hours to the south. It meant Alex, in the midst of a rapidly escalating war, had to get gas for his car, food for the kids, all the while coping with the dread of leaving his mother-in-law behind.

Concerns over the COVID-19 pandemic created another layer of problems for his family as they had to figure out how and where to get COVID tests in order to be able to board their flights. Luckily, the airport provided the necessary information, and, already fully vaccinated, they were able to get rapid tests, which were allowed.

Once at the airport, Alex had to figure out where to leave the family car, since he had no idea when or if he’d be able to come back. Several Facebook groups had emerged in the wake of the attack with people offering to help in whatever way they could. He messaged the group, asking for help with his car and a random stranger responded and offered to keep his car safe.

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Throughout that weekend, I was texting Alex’s family in the U.S. providing legal advice and guidance, which proved invaluable when they arrived at their destination airport in the United States. U.S. Customs and Border Protection officers took them to a separate room, commonly referred to as “secondary inspection.” They were interrogated for several hours about their intent to be in the United States.

Later, he told me that he really wasn’t sure if they were going to be sent back on the same plane they’d arrived on. For them, that would have been a disaster. CBP officers appeared surprised to see Ukrainian citizens arrive so quickly after the initial attack. To everyone’s relief, he and his family were allowed into the country — quite likely one of only a few Ukrainian families that have made it to the U.S. since the war started.

TPS was announced soon after Alex and his family arrived and initially they were relieved to learn of this option. They had just made the cut-off date to be eligible. However, when they realized that a pending TPS application would prevent them from traveling outside the U.S. freely, they had second thoughts. The family truly hoped to return to their home country someday. And filing a TPS application would contradict the temporary intent of their B1/B2 tourist visas, if they needed to visit mom in Moldova on short notice and return to the U.S. after.

Now their challenge is like that of countless others – both Americans and Ukrainians living in the U.S. – desperate for a way to remove their loved ones from danger in Ukraine and bring them to safety in the U.S.

Their options, unfortunately, are limited. But they shouldn’t be.

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While most displaced Ukrainians are now considered refugees, the refugee process to enter the U.S. takes years. It is not an immediate option and therefore, not a viable one for most.

B1/B2 tourist visas, like the ones Alex and his family had, should be an easy option for Ukrainians. But the application requires those applying to show evidence of a home, funds, and intention to leave the U.S. Displaced refugees, especially ones feeling war, are often not able to provide that kind of evidence. As a result, these visas are mostly being denied to Ukrainians. And that’s if people can even get appointments in the first place. The U.S. embassy in Frankfurt, Germany, has been designated as the consulate for Ukrainians. But the earliest appointments are now being scheduled for January and February of next year.

Next year.

Meanwhile, Ukrainians, now scattering across Europe, have been declared a stateless people, which means they can only be processed at U.S. consulates outside Ukraine.  But it is not practical to expect displaced and destitute refugees to be able to easily discover U.S. consulates worldwide.

What can be done about this?

The Biden administration can create policy guidance to waive the usual scrutiny for tourist visa applicants and issue them for people to be with their loved ones.  Some countries have done so. The U.S. can, too. These are extraordinary times that justify and require extraordinary measures.

And then there is the Humanitarian Parole option. U.S. citizens and green card holders can apply for family members to obtain “parole” or permission to be in the U.S. It is not a specific status. And it is neither easy nor quick. The Afghan crisis from just over six months ago resulted in over 40,000 HP applications. Most are still pending; just a few have been approved and many have been denied. As immigration attorneys filing these cases on our clients’ behalf, we don’t know the actual processing times.  As such, this, too, is not a viable and immediate solution for people facing such unimaginable danger.

However, the Biden administration can create a Special Parole Program, with parameters that allow certain groups of people to enter the U.S. With events unfolding similar to World War II, there is justification in creating such a program for this situation, though I recognize that other circumstances warrant special programs, too. There’s precedence for this as described in this American Immigration Council’s Fact Sheet that also provides other useful information on paroles.

The bottom line is that more needs to be done to create policies and programs to help war-crime victims. And we need to act now.


Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America.  She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She is a Puget Sound Business Journal 2020 Women of Influence honoree.  Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email at tahmina@watsonimmigrationlaw.com, connect with her on LinkedIn or follow her on Twitter at @tahminawatson.