Ukraine Conflict | Temporary Protected Status In The US

The US Department of Homeland Security recently announced Temporary Protected Status (TPS) for some Ukrainians in the US.

What is TPS and how do you apply for it? I answer those questions in the video below. You will also find a transcript below the video which you can browse for the answers you need. The transcript has been edited somewhat for clarity.

It is important to note from the outset that individuals eligible for TPS must have continuously resided in the United States since March 1, 2022. Individuals who attempt to travel to the United States after March 1, 2022, will not be eligible for TPS.

Please contact me if you have any questions about TPS or other immigration matters.

Sean: Welcome back to Pace Immigration, paceimmigration.com, talking once again with immigration lawyer, Michael O'Rourke. Michael, how's it going?

Michael O'Rourke: Great, Sean. How are you?

Sean: Very well, with some good news today in some trying times. Temporary Protected Status, we're going to talk about that. This is in the news now because of the Ukraine conflict, but we'll go into the history of Temporary Protected Status as well so that we can use this to inform others who might find themselves maybe in some dire straits down the road. So let's delve into it with what Temporary Protected Status is. I took this off the government website, and then we'll elaborate: "The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely or in certain circumstances where the country is unable to handle the return of its nationals adequately." Michael, if you could, just elaborate on that?

MO: Sure. So Temporary Protected Status is kind of a placeholder. It allows a country's citizens or nationals who are already in the US to stay in the US if there is, say for instance, war or conflict or hostilities, there's a natural disaster, if there's something that would put these people in harm's way, if they were to return or to leave the US. So it doesn't really count as a status, you're not in a non-immigrant status, you're not a permanent resident or anything like that, but you're allowed to stay in the US and work and support yourself during the duration of whatever this temporary event is.

S: Right. I've got some slides here, if you're watching on the YouTube channel. If you're listening on the podcast, flip on over to YouTube to take a look at some of these. This is again off the government website: "Ongoing armed conflict such as a civil war, environmental disaster such as an earthquake or a hurricane." We're currently talking about the Ukraine crisis, which would fall under the armed conflict.

MO: Exactly. And that is typically when TPS is granted or if there is a major, major environmental disaster.

S: I put up some examples here. All the way back, Somalia, 1991, with the Somali Civil War, through to El Salvador, where it suffered an earthquake in 2001, and then up to today with Ukraine, the armed conflict in 2022. Something for me that I wanted to point out to people before we get too deep into this. It makes it sound like a blanket thing. Like, "Everyone that's from Ukraine in the United States right now gets TPS?" That's not the way it is, is it, Michael?

MO: It's a blanket, but you gotta buy it. So for instance, TPS is this fantastic program that the US government extends at certain times for a limited duration, but to take advantage of TPS, you have to make certain applications. For instance, you have to apply for the protected status itself. If you want to work, you have to make that separate application. And if you want to travel during the TPS protection time, you actually have to make an application for parole, so that you can come back into the United States in this Temporary Protected Status if you were to leave.

S: One thing we should point out, too, that it doesn't matter what your status is, does it? Like for instance, so if you're on a work visa or if you're on a visitor's visa, it doesn't matter, any of that, does it?

MO: Right, and you can have entered the US without inspection - as some people say, you can be "illegally" in the US - and still apply for Temporary Protected Status. It means if you are granted this, that ICE will not remove you, that you can exist in the United States without status, but with this Temporary Protected Status.

S. More from the slides: During a designated period, TPS beneficiaries, they're not removable from the United States. As you were saying, they can stay. They can obtain an employment authorization document so they can work. That has to be applied for, and it comes with a fee. We'll get into that. They may be granted travel authorization if they apply for it. Talk about that, Michael.

MO: So there's an idea in US law called advance parole, and that is government permission for you to leave during the pendency of an application, or if you are, say, in this Temporary Protected Status, it would allow you to leave and come back. As you remember, Temporary Protected Status is only for people already in the United States when the grant is made. So it doesn't really apply to anybody who's outside. Say if you're a Ukrainian in Ukraine or Poland, or Germany right now, you would not be able to take advantage of Temporary Protected Status in the US.

S: Right, they put a date on that, right? If we're going to talk about the specifics, that specific one [TPS regarding the Ukraine crisis], I believe it was March 1st, 2022. If you weren't in the United States, then that's it, you cannot apply for it.

MO: Right, exactly. On the date that is designated in any sort of Temporary Protected Status designation, you have to be physically present in the United States and continuously residing.

S: Let's go into some more stuff here. TPS is a temporary benefit that does not lead to lawful permanent resident status. You're kind of in a holding pattern, aren't you, in TPS? Because you could be in TPS, and indeed some of the examples I gave before from Honduras and such, some of those people have been in the country for 20 years. So TPS status can be extended [by the US government], but that doesn't mean you're getting some kind of a benefit that it's going to lead to a green card or something.

MO: Right. You can still apply for a green card. Say you marry a US citizen, and then you could go through that process, but TPS doesn't lead to anything other than temporarily living and working in the United States.?

S: Alright, we'll move on to the process itself. It looked a little bit confusing to me but actually, there are some steps here, if you'd like to go into, the first one is that protection request.

MO: Yes, and so these can be done concurrently, or the protection request and the employment authorization can be filed separately. I would recommend filing everything together just to get in and working as quickly as possible, so the main thing that you have to do is file the form I-812, and that's the protection request, and that comes with a $50 fee. The US government is encouraging people to take advantage of TPS, so they don't put up many barriers to qualifying for it. You have to basically prove your residence in the US, you have to prove your identity, you have to prove your nationality, and you have to prove the date that you had entered into the US.?

S: The stuff at the bottom here on our slide, court disposition records, if you were ever arrested, charged, or convicted for a criminal offense. Does a criminal conviction mean you can't apply for TPS?

?MO: It depends. So it depends on the type of criminal conviction. There are some things that would bar you from ever applying for asylum in the United States, which is a different idea, but they take some of that into the TPS process. For instance, if you were ever involved in terrorism or genocide activities, if you have felonies or multiple misdemeanor-level crimes, too, you could be barred from applying for TPS. This is where it gets complicated, so I would always suggest talking with a lawyer here because whenever you've got criminality intersecting with an immigration process, it gets exponentially more difficult.

Sean: I notice here that it says, In court disposition records if you were ever... If you were. Court disposition records might be tough to come by. Basically it's only if you were, it's not like you have to prove your innocence.

?MO: No, so what they want to see if there was criminality in an applicant's history is arrest records, they would want to see, for instance, an FBI report. If there was a crime committed in the US, they would want to see that the court process has made its way through to the end and the ultimate disposition of the case, whether it was dismissed, whether there was a fine or imprisonment imposed, but that is a very important consideration for this TPS process.

S: I noticed here, too, Michael, evidence to prove your residence in the United States. Is a hotel good enough??

MO: Yes, because really, you just have to be physically present, so hotel bills, lease, even probably an affidavit from somebody renting you a room, but you do need to prove that physical presence.

S: Okay. I'll wrap it up with those forms, where do you do this? Do they have to contact an immigration lawyer like yourself to get this done, or can they do this online? What do you suggest?

?MO: So you can file for TPS online, and you can download the form from the USCIS website. We're always happy to do that for you as well. But in addition to the protection form, the 812, you do need to file the 765, the I-765, if you're going to work, and you would need to file a request for advanced parole or for a travel document. That's form I-131. So those forms form the constellation of being able to take advantage of this program to work and then to leave the country during this temporary period.

S: This announcement was made and they said it's going to be 18 months that you can stay in the country under Temporary Protective Status. A lot can happen in 18 months. You mentioned marriage, somebody could meet somebody, fall in love, get married, and then apply for immigration that way. What about people who they do well, and they've got this work authorization, can they open a business? And if the business does well, they can apply to stay that way, somehow?

MO: Sure. There are so many different ways to open up the US Immigration tool box and figure out a way to keep somebody in the country. So for instance, if somebody had the resources to invest in a business and get it up and running, and they were, say a Ukrainian, then we could take advantage of the E-2 program, or they might be able to find an employer who would sponsor them for an H1B. There are really so many different ways, and they're very fact-specific, so come and talk to us. We might be able to find a way to have you obtain an actual non-immigrant status or to adjust to being a permanent resident while in the US. It's really so fact-specific that the world is your oyster. Well, at least the US is your oyster.

S: Right.

MO: I know that was a bad analogy.

S: No, if anybody can do it, I know that you can, Michael. That's Michael O'Rourke, at [email protected]. Michael, thanks for this, we'll talk to you soon.

?MO: Sure, Sean, my pleasure. It's good to see you again.

?S: You, too. Bye-bye.

?MO: Bye-bye.