Biden Grants Temporary Protected Status (TPS) to Ukrainians in the U.S.

March 04, 2022
Beata Leja

On March 3, 2022, the Biden administration announced it was designating Ukraine for Temporary Protected Status (TPS) on account of the Russian invasion into Ukraine. Ukrainian citizens in the United States since March 1, 2022 will be eligible for this protection.

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. When a country is designated for TPS, any foreign national from that country present in the United States at the time can apply for TPS.

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 grant Ukrainians TPS for 18 months.

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 period for Ukrainians has not yet been announced, but should be announced in the coming days.
  • Have been continuously present in the United States since a certain date. In the case of Ukraine, the date is March 1, 2022.
  • 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.)

What are the benefits of Temporary Protected Status?

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

  • Protection from deportation;
  • An employment authorization document (EAD) work permit;
  • Eligibility to apply for a travel permit (called advance parole); and
  • A Social Security number.

Unfortunately, TPS does not provide a direct path to obtaining a green card or citizenship.

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.

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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