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Should I switch from U4U to TPS?

January 24, 2024
Anna Buskila

Since the Biden administration announced the extension and redesignation of Ukraine for Temporary Protected Status (TPS) on August 18, 2023, we have been receiving questions regarding pros and cons of switching to TPS from Uniting for Ukraine (U4U). Spoiler alert: we recommend applying for TPS for eligible individuals with no status and those who entered the U.S. pursuant U4U.

There are several advantages to having TPS over U4U. TPS beneficiaries have lawful status, can travel with TPS travel authorization and be admitted back to the U.S. under TPS. Most importantly, they have more options to receive a green card through I-485 adjustment of status, including employment-based options.

  • TPS is a nonimmigrant status. The primary advantage of TPS over U4U is that TPS provides a temporary lawful status, whereas U4U offers a temporary lawful presence.
    • Individuals who entered the U.S. under U4U are considered parolees. Parole is not a lawful immigration status. Instead, it allows a person to lawfully enter the U.S., provides temporary lawful presence, and protects from removal while in the authorized parole timeframe.
    • On the contrary, TPS is a nonimmigrant status, so TPS beneficiaries can change their status or adjust status in the U.S., assuming they meet other eligibility criteria.

 

  • TPS offers a faster ability to travel, presenting a significant advantage over U4U.
    • While U4U parolees have the option to apply for an advance parole document, these applications typically face prolonged adjudication times. An advance parole document allows individuals to seek parole into the U.S. upon returning from a trip abroad. However, it’s important to note that the issuance of an advance parole document does not guarantee re-entry into the United States. U.S. Customs and Border Protection (CBP) will make a separate discretionary decision on the parole request upon arrival at the port of entry.
    • On the other hand, TPS beneficiaries can apply for a TPS travel authorization document to travel abroad. TPS travel authorization documents are processed much more quickly than U4U advance parole documents. Based on recent cases at our office, the general processing times for a TPS travel authorization document range from 6 to 12 months. While the duration of TPS travel authorization varies, our clients have often received authorizations for periods of 9 to 12 months. Contrary to popular belief, applicants for a TPS travel authorization are not required to provide any significant reason or any reason at all to travel, allowing them to travel to any country for any purpose. TPS beneficiaries who temporarily travel abroad with a TPS travel authorization document are inspected and admitted into TPS upon return, with certain exceptions. This remains true even if the TPS beneficiary was initially present without admission or parole when granted TPS.

 

  • TPS provides for a change of status to other nonimmigrant status or a green card though I-485 adjustment of status. As TPS is a nonimmigrant status, beneficiaries have the flexibility to switch from TPS to other nonimmigrant statuses or pursue a green card through I-485 adjustment of status, including through employment.
    • U4U parolees can generally receive green cards through I-485 adjustment of status through family and humanitarian options (asylum, U visa, etc.), but not through employment. U4U parolees must go through a consular processing (receive immigrant visa abroad at a consulate) for employment options, assuming they meet other eligibility criteria. Similarly, U4U parolees do not have the option to switch to other nonimmigrant statuses, such as student or work visas without going through consular processing, since U4U itself is not a recognized status.
    • TPS can simplify the path to obtaining a green card through I-485 adjustment of status, given its classification as a nonimmigrant status, which in certain situations permits changing status or adjusting status in the U.S., even on the basis of an employer sponsor. The travel and return on a TPS travel authorization document provide for a unique opportunity to receive a green card through employment even with prior unlawful entry and unlawful presence in the U.S. This applies even to TPS beneficiaries in removal proceedings, but each case must be evaluated individually to determine the best strategy.

Finally, as of today, there is no direct pathway to legal permanent residence status for U4U parolees, and the likelihood of such a pathway emerging is very low. Speculations about U4U parolees becoming eligible for a green card soon stem from a bill introduced in the House on June 7, 2023. However, it’s crucial to understand that before a bill transforms into law, it must navigate through various stages of approvals, debates, opinions, and voting. While the prospect of U4U parolees gaining eligibility for a green card would be met with great enthusiasm, it’s important to note that the sheer volume of introduced bills is substantial, and a significant number never progress beyond the introduction stage or reach a point of expiration in the legislative process.

 

  Temporary Protected Status (TPS) Uniting for Ukraine (U4U)
Temporary lawful status? YES, temporary lawful status. NO, temporary lawful presence.
Can apply from within the U.S.? YES, available to individuals who are in the U.S. both without any lawful status and those who are maintaining temporary lawful status or even who entered pursuant U4U. NO, must be outside the U.S. to apply.
Protects from deportation? YES, while in the authorized TPS timeframe. YES, while in the authorized parole timeframe.
Authorized to work? YES, must apply for and receive Employment Authorization Document (EAD). YES, initially, employment authorized incident to parole. Then, must apply for and receive Employment Authorization Document (EAD) to present the employer within 90 days of hire.
Authorized to travel? YES, must apply for and receive TPS travel authorization document. YES, must apply for and receive advance parole document.

 

Eligible for refugee benefits? NO, if you are switching from U4U to TPS, check with the respective benefits office if you can keep the benefits. YES, U4U parolees paroled into the U.S. between February 24, 2022, and September 30, 2023, are eligible to apply for main­stream benefits, resettlement assis­tance, and other benefits available to refugees, until the end of their parole term.
Can be extended? YES, has been extended once, currently until April 19, 2025. Potentially, the Biden administration has not yet announced whether it will extend U4U beyond the initially authorized 2 years.
Pathway to Legal Permanent Residence Status? No Direct Pathway.

 

Other humanitarian, family, or employment options are potentially available. Getting a green card through I-485 adjustment of status easier on account of TPS being considered a nonimmigrant status, which in certain situations permits changing status or adjusting status in the U.S., even on the basis of an employer sponsor. This applies even to TPS beneficiaries in removal proceedings, but each case must be evaluated individually to determine the best strategy.

 

No Direct Pathway.

 

Other humanitarian, family, or employment options are potentially available. U4U parolees must go through a consular processing (receive immigrant visa abroad at a consulate) for employment options, assuming they meet other eligibility criteria.

 

To discuss your case and evaluate potential options, do not hesitate to contact our office at (312) 427-6163 or schedule a consultation online.

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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