Ukrainians qualify for Temporary Protected Status
The Biden Administration has granted Temporary Protected Status (TPS) to Ukrainians in the United States. The designation of the Ukrain for Temporary Protected Status (TPS) means that Ukrainians living in the United States from the date of the designation will not be removed from the United States. Ukraine was designated on March 3, 2022.
Under INA §244, the Attorney General may establish temporary programs to protected citizens of certain countries. The Temporary Protected Status (TPS) program is one of these programs. The AG in consultation with government agents may establish such programs for one of the following countries:
- There is an ongoing civil strife in the country or a part of the county. INA §244(b)(1)(A);
- There has been an earthquake, flood, drought, epidemic, or other natural disasters and the country could not absorb the return of its nationals under INA §244(b)(1)(B); or
- There exist extraordinary and temporary conditions in the foreign state that prevent its nationals from returning unless the admission is contrary to national interests under INA §244(b)(1)(C).
A person who is granted TPS:
- Is granted TPS for 6 to 18 months which can be extended
- Shall not be deported during TPS period under INA §244(a)(1)(A). the Attorney General must inform the immigrant that TPS is available.
- Shall be granted an employment authorization INA §§244(a)(1)(B) and (C)
- Shall not be detained on the basis of her status under INA §244(d)4)
- May travel abroad with permission under INA §244(f)(3), but must apply using for I-131 before traveling. If the person returns in a timely manner may no longer be subject to the 3/10 years bars. Matter of Arrabally & Yerrabelly, 25 I&N Dec. 771 (BIA 2012).
- May apply for asylum because TPS was not meant to eviscerate asylum.
- May apply for cancellation of removal once TPS expires but time spent may not count towards physical presence for LPR cancellation but may for non-LPR cancellation.
Eligibility for Temporary Protected Status
An applicant must establish the following to establish eligibility under INA §244(c):
- Nationality of the protection country by passport, certificate of birth, or affidavit if other documents do not exist
- Presence in the United States at the time of designation must also be shown. INA §244(c)(1)(A).
- Must be otherwise admissible
- Must not firmly resettled in a third country
- Must not be ineligible because of a conviction for a felony or two misdemeanors
- Must apply within the period of registration unless he was in other legal status after which he can apply within 60 days.
Spouses and children of TPS holders may register after the period of registration as long as the relationship existed at the time of designation. They must also be nationals of the country of designation and meet all other requirements. Matter of Echeverria, 25 I&N Dec. 512(BIA 2011). If TPS is denied for a ground of deportability a charging document shall be issued. 8 CFR§§ 244.3-4.
Termination of TPS
Temporary protected status may be withdrawn in the following circumstances under INA §244(c)(3):
- The person was not eligible
- The person fails to maintain physical presence under INA §244(c)(4)
- The person fails to re-register §244(c)(3)(C)
- The Attorney General terminates the program §244(c)(3)(B)
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