The Volokh Conspiracy

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Closing a Bureaucratic Loophole that Harms Ukrainian Refugees

A easy-to-remedy snafu in the government's Uniting for Ukraine program is exposing some Ukrainian migrants to deportation and preventing others from working legally in the United States.


Russia's invasion of Ukraine has, among other things, created the biggest refugee crisis in Europe since World War II. Since the Russian attack began in February, Western governments, including the US, have done much to open doors to Ukrainian refugees fleeing the conflict and associated Russian repression. Most notably, the Biden Administration has established the Uniting for Ukraine program, under which Americans can sponsor Ukrainian refugees to enter the country on an expedited basis. The president has also granted Temporary Protected Status (TPS) to Ukrainians who arrived in the US by April 11 (after initially cutting it off at March 1). TPS status gives Ukrainians the right to live and work in the US for up to 18 months (though the president can cut short—or extend—this period at will).

Unfortunately, however, a loophole in this combination of policies has exposed some Ukrainians to potential removal from the US, and prevented others from working legally. Ukrainians are only eligible for TPS if they arrived by April 11. The Uniting for Ukraine program only came into effect on April 25.

This leaves out in the cold people who arrived between April 11 and April 25, and in some cases even later because it took time for UforU to get underway, even after April 25. Based on my discussions with organizations assisting migrants, it appears there are hundreds or perhaps even thousands of people in this position, though I admittedly do not have reliable estimates. Some have even been subject to removal proceedings, according to reports I have heard. Others remain in limbo.

Most of these people entered the United States on B2 tourist/visitor visas (the only kind they could apply for at the time) or were granted humanitarian parole to cross the US-Mexican border. Either way, they may be able  to stay in the US for only a short time (generally no more than six months), and often are not eligible to work legally. The latter both makes it hard for the Ukrainians to support themselves, and  prevents them from benefiting the US economy through their labor.

There is an easy fix for these problems! Simply extend TPS to Ukrainians who arrived at least as late as April 25, but preferably at least by June 1. Better still, it should be extended to all who arrive at any time so long as the war continues. Under current law and judicial precedent, the president can do these things with the stroke of a pen.

The rationale for these steps is obvious: the Russian invasion of Ukraine and accompanying repression of people in occupied territories (including even mass deportations of civilians) is the sort of situation TPS is obviously intended to address. Despite recent Ukrainian successes on the battlefield, Russia still occupies large parts of the country, and the war seems likely to continue for some time to come. Letting Ukrainians stay is both the right thing to do on moral grounds, and likely to benefit our economy.

Ukrainians who arrived after April 11 are no less worthy of refuge than those who arrived before. There is no rationale for distinguishing between the two groups. There is still less justification for the April 11-25 loophole. Most likely, its creation was a bureaucratic oversight, rather than a deliberate policy.

There is also, as far as I can see, essentially zero political risk to fixing this problem for the White House, and perhaps even a modest benefit (refugee advocacy organizations and the Ukrainian immigrant community would be grateful). Hopefully, they will address it once made aware of it, though government bureaucracies have all too often allowed worse problems to persist through inertia.

Fixing this discrete issue is not a substitute for addressing broader flaws in our immigration and refugee policies generally, and those related to the Ukraine war specifically. Among other things, we need a larger-scale permanent private refugee sponsorship program, and Ukrainians fleeing the war should be given permanent rights to live and work in the US, not just a temporary status, revocable by the White House at any time. Moral, economic, and strategic considerations also support opening US doors to Russians fleeing Vladimir Putin's increasingly repressive regime.

In earlier posts (e.g. here and here), I have addressed claims that accepting Russian and Ukrainian refugees is unfair so long as the US and its allies are less open to those fleeing violence and tyranny elsewhere. These iniquities should be addressed by "leveling up," not "leveling down."

But even if the US government cannot or will not resolve these broader issues in the near future, it can at least close the ridiculous April 11-25 gap. The best should not be the enemy of the good. We have here a simple problem, with a simple and easy solution.