The Volokh Conspiracy
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Why Congress Should Pass a Ukrainian Adjustment Act
Giving recent Ukrainian refugees the right to permanent residency in the US will avert potential tragedy for them, and benefit the US economy.
The US has done much to open its doors to Ukrainian refugees fleeing the brutal Russian invasion that began almost exactly one year ago. Since that time, over 113,000 Ukrainians have entered the United States under the innovative Uniting for Ukraine private refugee sponsorship program (with many more granted permission to come, but not yet arrived). Some 154,000 have been admitted by other pathways, many of them before Uniting for Ukraine began in April 2022. Granting refuge to Ukrainians fleeing war and oppression is simultaneously a moral imperative, a way to bolster the US economy, and a win for the United States in the war of ideas against Vladimir Putin and other despots.
But unless we act soon, this success may be seriously compromised. The vast majority of Ukrainians admitted over the last year have so far been given only a temporary right to live and work in the United States. When their time limits expire, they could be subject to deportation, or at least be unable to work legally.
Ukrainians admitted under the Uniting for Ukraine program are granted residency and work rights for two years after arrival. For the earliest program participants, those rights will expire in April or May 2024. More will lose legal status thereafter. Ukrainians who reached the US before April 11, 2022 have been given Temporary Protected Status (TPS), which offers similar residency and work permits. But TPS for Ukrainians is currently scheduled to expire on October 19 of this year.
President Biden could potentially extend both the TPS and Uniting for Ukraine deadlines by executive action. But if he does not, hundreds of thousands of Ukrainian migrants fleeing Vladimir Putin's war will be left in legal limbo, potentially subject to deportation. Even if few are actually deported, constant fear of that prospect is painful in itself, and makes it difficult to have anything approaching a normal life. Moreover, loss of work authorization will make many employers reluctant to hire the Ukrainians. That, in turn, would consign them to unemployment or to the black market economy.
In addition to the obvious harm inflicted on the Ukrainian migrants themselves, loss of legal status would also curtail their potential contributions to our economy and society. A population living illegally in "the shadows" is much less likely to assimilate effectively. And people barred from working legally cannot make as big an economic contribution as they would otherwise. Among other things, they are unlikely to engage in entrepreneurship and scientific innovation of the kind to which immigrants disproportionately contribute, thereby creating major benefits for America and the world.
When I described this issue to Ukrainian refugee Ruslan Hasanov, a member of my sponsoree family in the Uniting for Ukraine program, he wondered whether the US government had given any thought to what would become of program participants when the two years are up. It's a good question!
One possible reason why the Biden Administration set such short deadlines is they might have expected the war in Ukraine to be over by 2024, thereby enabling refugees to return home. But it is increasingly clear the war might well last much longer than that. Moreover, experience with past refugee crises shows that many migrants are - for good reason - unable or unwilling to return to their countries of origin even when the war ends. For example, it is far from clear that Ukrainians will be able to return to places like Mariupol, where their former homes and places of employment have been completely destroyed.
Biden could potentially extend the Uniting for Ukraine and TPS deadlines through unilateral executive action. That would be much better than simply waiting for them to expire. But such an executive fix would still leave refugees vulnerable to the whims of whoever sits in the White House. If Biden or a future president found it politically convenient to do so, he could easily terminate their rights, or just let them expire again.
The best solution for this problem is for Congress to pass a Ukrainian Adjustment Act, giving Ukrainian migrants who have entered the US during the war the right of permanent residency and work status. That would give them a secure status no longer subject to the vagaries of politically driven executive discretion.
Such adjustment acts have been repeatedly enacted for migrants fleeing war and tyranny admitted under previous exercises of the presidential parole power used to create Uniting for Ukraine, beginning with Hungarian refugees fleeing the 1956 Soviet invasion. Congress could easily do the same in this case. But it may need to act swiftly. Significant legislation of any kind is far less likely to be enacted during the 2024 presidential election year.
One possible argument against a Ukrainian Adjustment Act is that it would be unfair to migrants fleeing similar war and oppression elsewhere. I agree the latter deserve permanent refuge, as well. For example, Congress should also enact an Afghan Adjustment Act giving permanent refuge to refugees fleeing the cruel Taliban regime that seize power after the US withdrawal in 2021. During the current war, I have also advocated giving refuge to Russians fleeing Vladimir Putin's increasingly repressive regime. That refugee, too, should be permanent.
But if it turns out that it is only politically feasible to enact an adjustment act for Ukrainians (because Ukrainian refugees enjoy broader political support than those from most other countries), that is better than refusing to enact such legislation for anyone until we can do it for everyone. The best should not be the enemy of the good. The right approach to such problems is "leveling up," not "leveling down." A Ukrainian Adjustment Act could even become a model for similar laws covering other groups, just as the Uniting for Ukraine approach was recently expanded to cover migrants fleeing oppression and violence in four other nations.
