Questions emerge on future of Ukrainians in U.S. and refugees abroad—02-25-22

Immigration news, in context

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This week’s edition:

• In The Big Picture, we discuss the potential immigration effects of Russia’s invasion of Ukraine.

• In Next Destination, we look at the latest legal battle over “public charge.”

The Big Picture

The news: With the Russian invasion of Ukraine in full swing, the international refugee resettlement infrastructure is turning its attention to the question of accommodating refugees both in Ukraine and in third countries.

What’s happening?

There are a couple relevant questions here, the first of which involves the Ukrainians already present in the United States. As we’ll get into later, there were several waves of outmigration from Ukraine over the 20th century, and large numbers resettled in the United States. The Ukrainian immigrant community at this point numbers around 345,000, of which the Migration Policy Institute has estimated about 30,000 are people without permanent status.

Very quickly after Russia’s invasion of Ukraine was first reported, advocates, think tanks, and members of Congress, began calling on the Biden administration to institute Temporary Protected Status (TPS) to shield Ukrainians currently in the country from deportation and provide them with work authorization. As we’ve touched on before, TPS is a sort of discretionary band-aid program. It allows the government to determine that sudden and extremely hazardous conditions in a particular country makes it untenable to send anyone back to it, and therefore allow them to remain and work legally as long as the emergency conditions continue.

Unlike programs created fully by executive discretion (e.g., DACA), TPS was actually codified by Congress as 8 USC § 1254a. For all the nitty gritty, you can read our prior editions on it, but the main takeaways here are that the law empowers Homeland Security to evaluate countries for certain conditions, including specifically whether there is “ongoing armed conflict.” If it finds that the criteria are satisfied, it can designate the country for TPS, allowing nationals (or people for whom it was the country of “habitual residence” if they don’t have a nationality, something that might be relevant for a small number of émigrés of the former USSR) already in the U.S. at the time of designation to stay.

This last bit is rather important, as TPS designations exclusively affect people who were already in the country but did not have permanent status, a group that mainly includes students, temporary workers, and undocumented residents. The initial designation can last anywhere between 6 and 18 months, at which point DHS conducts a review to determine whether to redesignate for another temporary period. (Among Stephen Miller’s various restrictionist innovations was pushing DHS to adopt a policy of looking only at whether the country in question was still suffering from the initial reason for designation, not whether it remained unsafe generally, a departure from prior precedent.)

The other, substantially similar option would be the Deferred Enforced Departure program (DED), which does not have a specific statutory basis and is issued directly by the president as part of the office’s general enforcement discretion authority. There are currently only three areas with DED designations: Liberia, Hong Kong, and Venezuela. It would likely be faster but a bit less secure than TPS, though in practice it would work in fundamentally the same way. Some have suggested other measures, like a Special Student Relief designation, also issued by DHS, that would temporarily suspend some of the regulatory requirements on student visa holders and allow them to work more freely off-campus, for example.

These temporary relief programs are not a perfect solution, but these are of course the exact type of situations they were created to address. The flip side of the coin is the refugees now expected to leave Ukraine, which the Pentagon has estimated could number between 1 and 5 million. Thousands of Ukrainians have already entered into countries like Moldova and Poland, where authorities have set up welcome camps for the arrivals (it’s worth noting that the Polish government has taken extreme measures to block the arrival of refugees from elsewhere, deploying thousands of troops and barbed wire to stop migrants mainly from the Middle East and Asia).

As some experts have pointed out, Ukraine has a visa-free travel agreement with the EU, meaning that Ukranians can travel freely to EU member states without even cursory humanitarian migration restrictions; from there, they can seek asylum, or relatively easily enter other standard pathways to a more permanent residency. This, paired with land (rather than sea) borders will mean the chance for a relatively “orderly” refugee exodus, depending on how the land war continues and the extent of the devastation in Ukraine.

If there are truly millions of refugees, there might still be a large role for the United States to play, particularly following years of pretty limited resettlements. As we’ve discussed extensively before, the U.S. government thoroughly dropped the ball when it came to resettling Afghan refugees ahead of Kabul’s collapse during the U.S. withdrawal. It should absolutely try to rectify that mistake, but this is also an opportunity for it to step up and continue on what had once been a proud tradition as the global refugee destination. The Biden administration, under pressure, set the refugee visa cap at 125,000 for fiscal year 2022. One of the most straightforward ways to meet that goal is to set up processes specifically targeting Ukrainian refugees.

How we got here

The largest number of Ukrainian refugees came to the U.S. after the fall of the Soviet Union. Ukraine’s independence was followed by an economic depression, causing mass out-migration. Even before then, there was a sizable Ukrainian diaspora in the U.S. Roughly 750,000 Ukrainians or people of Ukrainian descent lived in the U.S. by 1931. A subsequent wave of Ukrainian migrants came to the U.S. after World War II, some of whom arrived as postwar refugees.

The U.S. refugee system is the product of wars in Europe. The Displaced Persons Act of 1948 allowed for the admission of 200,000 European refugees who had been displaced by World War II and met certain criteria. In order to qualify, a refugee must have entered Germany, Austria, or Italy and lived in the American, British, or French sectors of those countries prior to December 22, 1945, which effectively discriminated against Eastern European Jews who had not reached those countries prior to the war’s end.

At the time the legislation was passed, immigration to the U.S. operated on a country-based quota system. Under the quota system, which was implemented in the 1920s, each European country was allowed a certain number of slots based on the percentage of people from that country who had been present in the U.S. as of the 1890 census. The goal was to limit the number of Jews and Southern and Eastern Europeans in the U.S.—and, in fact, in 1939 the U.S. used the quota system to turn away ships full of Jewish refugees fleeing Nazi Germany. The 1948 refugee law “mortgaged” each country’s immigration quotas. Up to half of each country’s quota slots could be used for displaced persons, but the quotas themselves did not change.

There was no systematized refugee admissions process until the Refugee Act of 1980 streamlined the way the U.S. handled refugee admissions. Prior to that, people fleeing conflict were taken in on an ad hoc basis. For example, after the Vietnam War, the U.S. took in hundreds of thousands of Vietnamese—and to a lesser extent, Laotian and Cambodian—refugees. During the Cold War, refugee resettlement was largely a tool of soft power against the Soviet Union and countries in its orbit. Cuban asylum seekers were generally allowed to stay, because they were fleeing communism; meanwhile those from Haiti, El Salvador, and Guatemala were by and large ordered deported. (The difference between refugee and asylum is also important to note: asylum seekers apply for protections after reaching the U.S., while refugees apply for resettlement from a third country after having been displaced from their homes.)

Like asylum seekers, refugees can’t get status solely because they’ve fled generalized violence. In order to qualify as a refugee, one must be able to prove that they’ve faced persecution (or have a well-founded fear of persecution) due to their race, religion, nationality, political opinion, or membership in a particular social group. In 1989, Congress passed the Lautenberg Amendment, which went into effect the following year. The amendment allowed religious minorities from the Soviet Union (and later, from countries that used to belong to the USSR) to qualify for refugee status without having to prove that they had been persecuted or faced persecution due to their religious affiliation. It was later expanded to include religious minorities in other countries, including Iran. 

The Lautenberg Amendment is still in effect, and the majority of its beneficiaries continue to be religious minorities—primarily Evangelical Christians—from Ukraine. In the first 10 months of fiscal 2017, nearly 4,000 Ukrainian refugees were admitted into the U.S., according to the New York Times. In 2019, Ukrainian refugees were the third-most resettled group in the U.S., after those from Congo and Myanmar, due to the Trump administration’s ban on immigrants from several Muslim-majority countries.

Temporary Protected Status was also introduced in 1990 as part of that year’s Immigration Act. Until 2003, when the Department of Homeland Security was created, the Attorney General was responsible for granting TPS designation to people from a certain country. Unlike refugee or asylum status, TPS is meant to address generalized violence, conflict, or instability. Countries can receive TPS designation due to ongoing armed conflict or natural disasters like hurricanes or earthquakes, and prospective recipients do not have to prove that they faced persecution in their country of origin. Crucially, TPS designation isn’t for people who are fleeing their country but for those who are already in the U.S.

What’s next?

It seems relatively likely that the administration will designate Ukraine for TPS or DED. While FAIR and the Heritage Foundation and whatnot might raise a stink about it, the political figures and lawmakers who railed against TPS for Salvadorans and Haitians are much less likely to get up in arms about a TPS designation for Ukrainians for, well, a variety of reasons. You know the ones. Beyond that, it’s a bit of a no-brainer for Biden: he can annoy Putin and claim that he’s acting to protect Ukrainians without having to really do much at all, and it’s a temporary designation affecting some 30,000 people. Barely a blip.

Given the way this situation is unfolding, a designation will likely be for the full 18 months, and could very easily end up extended beyond that (though we want to emphasize we really have no idea what’s going to happen here, and honestly, neither does anyone else). If it does end up getting extended a few times, it will ultimately create for Ukrainians the same problem that the other TPS-holding populations have—an indefinite semi-status that has no clear way of leading into permanent residency, leaving them in a state of limbo. They can, of course, also apply for asylum, but that’s a bit of a crapshoot.

It’s a little harder to predict the extent to which there will be an effort to resettle large numbers of Ukrainians in the U.S., as this will partly result from the ultimate circumstances on the ground, including the devastation wrought by Russia (already not looking great, with reports of bombed shelters, shelling of apartment buildings, and other heavy-handed war tactics), Putin’s ultimate plans (will this turn into an open-ended occupation versus installing a client government and leaving, etc), and Europe’s ability to absorb the resultant refugees.

It is possible that there doesn’t end up being much of a need for mass U.S. resettlement, or it’s possible that there does but the administration fails to set up the processes to efficiently manage it. Remember, these are people who would now be going through the standard refugee admissions process, meaning the multi-month or multi-year effort that includes all manner of background and medical checks. If they participated in combat at all, even as civilians, that could complicate things. Of course, it’s also possible that Putin will overreach and end up engaging NATO forces along the Polish-Ukrainian border or something and setting off WWIII. At this point, who knows.

Under the Radar

Next Destination

Supreme Court considers “public charge” rule

The Supreme Court heard arguments this week regarding the Biden administration’s decision to scale back Trump’s expansion of the “public charge” rule. The concept of “public charge” dates back to a late nineteenth century law denying entry to any migrant deemed to be a potential public charge, but it wasn’t until 1999 that Congress clarified specifically what that means. Since then, the rule has applied to people who use cash benefits like Temporary Assistance for Needy Families (TANF). In 2019, the Trump administration expanded public charge to include past, current, or even potential future use of non-cash benefits like Medicaid and SNAP. Immigrant advocacy rules sued the administration, leading to a long legal back-and-forth. 

Those lawsuits continued into the Biden administration. The administration stopped defending the public charge policy in courts in March 2021 and filed with the Federal Register to rescind the rule change shortly thereafter. Texas and 13 other states then sued the Biden administration, claiming that ending the public charge expansion would cause states to spend “hundreds of millions of dollars every year to sustain the services our state must provide to illegal aliens.” (Undocumented immigrants are not eligible for Medicaid, SNAP, or other federal benefits, and public charge specifically applied to people who were applying for green cards.)  

Like much immigration-related litigation over the past few years, the legal dispute is not over whether the Biden administration has the authority to make policy changes but rather whether the administration made those policies in the correct way. The states claimed that the Biden administration’s decision to stop defending the public charge rule in court—effectively ending several ongoing lawsuits—violated the Administrative Procedure Act.