Biden Extends and Redesignates Temporary Protected Status (TPS) to Ukrainians in the U.S. Since August 16, 2023

August 21, 2023
Beata Leja

On August 18, 2023, the Biden administration announced it is extending and redesignating Ukraine for Temporary Protected Status (TPS) on account of the continued Russian invasion into Ukraine. This extension allows Ukrainian citizens with already approved TPS to extend it further until April 19, 2025. The redesignation further allows Ukrainian citizens (and individuals with no nationality who last habitually resided in Ukraine) which have been in the U.S. since August 16, 2023 to now seek TPS for the first time, including those with no status and those who entered the U.S. pursuant to Uniting for Ukraine (U4U). USCIS estimates that as a result of this redesignation, approximately 166,700 new individuals will become eligible for TPS.

What is Temporary Protected Status?

TPS is a designation countries can receive if the Department of Homeland Security (DHS) believes that conditions in that country make it too dangerous to return there. Some common reasons for countries to receive TPS are natural disasters, war, or other widespread conflict. In this case, DHS Secretary Mayorkas extended TPS for Ukraine on account of “Russia’s ongoing military invasion of Ukraine and the resulting humanitarian crisis [which] requires that the United States continue to offer safety and protection to Ukrainians who may not be able to return to their country.” He further added that the U.S. “will continue to offer our support to Ukrainian nationals through this temporary form of humanitarian relief.”

As the name suggests, TPS is temporary. It is generally granted for periods of 12 to 18 months, at which point DHS decides whether or not to renew TPS for that country. Because TPS is based on conditions in the home country, if DHS believes that conditions have improved, it can choose not renew TPS for that country. In this case, DHS has indicated that it will further extend TPS for Ukrainians until April 19, 2025.

What are the basic requirements to obtain Temporary Protected Status?

In order to obtain TPS, you must meet the following basic conditions:

  • Be a citizen or national of a country that has been designated for TPS.
  • File your TPS application within a certain required time frame, called the initial registration period. The initial registration period for new applicants under Ukraine TPS redesignation begins on August 21, 2023 and will remain in effect through April 19, 2025.
  • Have been continuously present in the United States since a certain date. In the case of Ukraine, the date is now August 16, 2023.
  • You cannot have been convicted of certain crimes.
  • You must meet certain national security requirements.

Most notably, TPS is available to individuals who are in the U.S. both without any lawful status and also those who are maintaining temporary lawful status (e.g. B-2, F-1, J-1, H-1, L-1, etc.) or even who entered the United States pursuant to Uniting for Ukraine (U4U). It further extends to individuals who are in removal proceedings or even those with outstanding orders of remove (i.e. deportation).

What are the benefits of Temporary Protected Status?

TPS holders receive the following benefits for the duration of their approved TPS:

  • Temporary lawful status;
  • Protection from deportation;
  • Employment authorization document (EAD) work permit;
  • Eligibility to apply for a TPS travel authorization document to travel abroad;
  • Social Security number.

TPS does not on its own create a path towards a green card or citizenship, but can make the road to getting a green card easier on account of TPS being considered a nonimmigrant status pursuant to INA 244(f)(4), which in certain situations permits changing status or adjusting status in the U.S., even on the basis of an employer sponsor.

Extension for Ukrainians with approved Temporary Protected Status

Ukrainians with approved TPS must file to extend their TPS during the designated 60-day period between August 21, 2023 and October 20, 2023. Failure to file during this window may result if foregoing eligibility for the program, barring exceptional circumstances.

If approved, the TPS extension will be valid until April 19, 2025. Recognizing that not all re-registrants may receive a new Employment Authorization Document (EAD) work permit before their current EAD expires, USCIS is automatically extending the work authorization previously issued through October 19, 2024. Individuals may present a copy of this Federal Register notice to any employer as evidence of their continued work authorization in that case.

Redesignation for first time applicants

Ukrainians that have not previously obtained TPS may seek initial TPS designation if they meet the eligibility criteria above, have continuous residence in the U.S. since August 16, 2023 and have been physically present in the U.S. since October 20, 2023. USCIS distinguishes the two presence requirements as follows:

  • Continuously physically present means actual physical presence in the United States for the entire period specified in the regulations. An individual shall not be considered to have failed to maintain continuous physical presence in the United States by virtue of brief, casual, and innocent absences.
  • Continuously resided means residing in the United States for the entire period specified in the regulations. An individual shall not be considered to have failed to maintain continuous residence in the United States by reason of a brief, casual and innocent absence or due merely to a brief temporary trip abroad required by emergency or extenuating circumstances outside the control of the alien.

Should you apply for Temporary Protected Status if you are already in the U.S. in another temporary nonimmigrant status?

Individuals in the U.S. who are maintaining a temporary nonimmigrant status are eligible to apply for and receive TPS, but using the EAD work permit that comes with TPS may have serious consequences for those whose nonimmigrant status prohibits employment (e.g., B-2 visitors, certain F-1 students, certain H-4 spouses, etc.) Pursuant to a 2015 FAQ, DHS stated:

Any individual who applies for and is granted TPS must continue to comply with the separate eligibility requirements of all other statuses (e.g., F-1, H-1B) that he or she seeks to maintain. It is up to the individual to know and understand the requirements of all statuses he/she holds or is seeking to obtain and/or maintain. Receiving TPS or a TPS-related EAD does not alter any rules limiting employment for certain nonimmigrants, such as F-1 students or B-2 visitors. Before someone holding both nonimmigrant status and TPS chooses to work using a TPS-related EAD, he or she should carefully consider whether that employment could violate the terms of the nonimmigrant status, potentially resulting in violation of the nonimmigrant status.

Therefore, individuals in the U.S. in a nonimmigrant status that prohibits working should carefully consider whether the benefits of using the TPS EAD work permit outweigh the costs of violating their underlying nonimmigrant status. Some possible consequences of violating their nonimmigrant status include:

  • Not being able to extend their nonimmigrant status;
  • Not being able to renew their nonimmigrant visa at a U.S. Consulate;
  • Not being able to adjust their status (i.e., apply for a green card) in the U.S. in certain categories

Note that this precaution does not apply to those F-1 students which are authorized to work in the U.S. on-campus, or those working off-campus pursuant to Optional Practical Training (OPT), Curricular Practical Training (CPT), Special Student Relief (which was also extended until April 19, 2025), or other authorized employment.

What About Uniting for Ukraine?

The Biden administration has not yet announced whether it will extend the Uniting for Ukraine (U4U) program, and if so, for how long. Nevertheless, even if the U4U program is extended, it would only benefit those Ukrainians which are still abroad seeking to enter the U.S. Those individuals who are already in the U.S. pursuant to U4U and have been in the U.S. since August 16, 2023 are encouraged to now seek TPS.

If you wish to learn more about your eligibility for TPS or the consequences of applying for TPS, please do not hesitate to contact our office at (312) 427-6163.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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