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US Immigration Law and Humanitarian Crises

Allison Lukanich

Between the fall of Afghanistan to the Taliban last year and the Russian invasion of Ukraine, many look to the leadership of other nations to assist those fleeing war and the possibility of persecution. In the wake of the crisis in Ukraine, many countries are waiving their visa requirements to Ukrainian citizens, specifically European countries, to assist those looking for a safe haven from the missile attacks and armed conflict. With the immediate responsibility falling to Ukraine’s immediate neighbors and other European countries, what responsibilities will be placed on the US immigration system to help Ukrainians?

Both Afghans and Ukrainians are required to hold visas for entry to the United States, unless and until the US government waives that requirement.  The Embassy and Consulates in both countries closed and with staff moved out for their safety, there is no one inside either Afghanistan or the Ukraine to assist its citizens with travel to the U.S.  If they are able to leave the country, they can apply for any number of visas that they may qualify for.  However, given COVID-related backlogs, this will take quite some time to simply get a visa appointment and is not a short-term solution.

Using Afghanistan as a case study, many individuals applied for humanitarian parole, a special type of entry document proving they had financial support inside of the United States, and allowing an Afghan individual or family to enter temporarily due to the humanitarian crisis.  Upon entry, they would be allowed to seek other immigration options, such as applying for asylum or a family or employment-based option.  In theory, humanitarian parole sounds great, but in reality, there have been many issues.  A recent NY Times article reported that of 43,000 humanitarian parole applications filed with USCIS for Afghans since July 2021, only 2,000 have been processed, resulting in only 170 approvals as of February 11, 2022.

With the new humanitarian crisis in Ukraine, those seeking humanitarian parole will only add to USCIS’ already overwhelming backlog, and if the approval ratings are anything like they are for Afghans, very few will be successful.  The most important thing for Ukrainian citizens right now is that they feel safe, and turn to countries who are willing to help provide them temporary or even permanent status as we see what unfolds between Ukraine and Russia.  It is possible that the U.S. government may make provisions to waive certain visa or entry requirements for Ukrainians, but given that has not happened for Afghans in light of the Taliban taking over the country, it is extremely unlikely to happen.

Pursuing asylum or refugee status may be another option, although that presents its own challenges as well.  In order to seek asylum status, an individual must meet the definition of a refugee AND be physically present in the United States.  A refugee is defined as “any person outside any country of such person’s nationality or, in the case of a person having not nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself to the protection of, that country because of persecution of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”  INA §101(a)(42).

It is too soon to tell with the conflict in Ukraine being so recent whether Ukrainian citizens will have a claim for asylum on the basis of this definition.  If they are processed as a refugee outside of the United States, the UN High Commissioner for Refugees’ (UNHCR) office makes the determination, and then refers the individual or family to any country willing to accept them.  This often takes many months or years, and then the individual must undergo background checks and visa processing to be able to enter the country they were selected to resettle in, based on that country’s requirements.  If the individual or family is inside of the United States, either through humanitarian parole or entering on another visa, it is up to the United States’ own asylum laws to determine whether they meet that definition of refugee.

While asylum law is the same throughout the United States, the interpretation of that law varies wildly by asylum office jurisdiction or immigration court.  The biggest issues that often come up are whether the individual has suffered past persecution or has a well-founded fear of future persecution.  Additionally, whether that fear of persecution is ON ACCOUNT OF one of the five protected grounds.  The “on account of” or nexus requirement means that the individual fear persecution because of their race, religion, nationality, membership in a particular social group, or political opinion.  Given the recency of events unfolding in Ukraine, it is unclear whether citizens will be targeted for persecution on account of one of these protected grounds.

If you, a loved one, or colleage is currently in Ukraine or displaced as a result of the conflict, please do not hesitate to contact our office.  Our lawyers and staff are dedicated to answering your questions and assisting you in any way that we can.  Let Bashyam Global get started on your case today by calling (919) 833-0840 and talking to us about your case.