In the News The American Lawyer

Ukraine Pro Bono Effort Turns to Undocumented Ukrainians Living in the US

Many of the 34,000 undocumented Ukrainians living in the United States will soon be eligible for Temporary Protected Status, allowing them to stay in the country legally for at least 18 months. Meanwhile, pro bono partners, including Kirkland's global program director and pro bono counsel Jacqueline Haberfeld, say undocumented refugees from African and Middle Eastern countries have been waiting years for the same status.

What You Need to Know:

  • Undocumented Ukrainians living in the U.S. will soon be able to apply for temporary protected status and subsequent employment authorization.
  • The change in immigration policy provides an outlet for U.S.-based attorneys to assist Ukrainian refugees, many of whom arrived after Russia invaded Crimea in 2014.
  • Big Law offices in Poland are assisting Ukrainians more directly with legal aid and logistical support.
  • The swift move to protect undocumented Ukrainian nationals contrasts with lacking support for African and Middle Eastern countries with ongoing conflicts.
  • While American law firms and attorneys searched for ways to help Ukrainian refugees in the week since Russia invaded Ukraine, firms without Central European offices had been unable to provide direct pro bono assistance.

That changed on Thursday, when the Department of Homeland Security opened a pathway that will enable U.S.-based attorneys to aid Ukrainian refugees—but not those fleeing the Russian invasion.

Instead, DHS Secretary Alejandro Mayorkas announced the designation of Ukraine for Temporary Protected Status (TPS), giving the roughly 34,000 undocumented Ukrainians living in the U.S. an opportunity to remain in the country legally for up to 18 months.

The status does not apply to Ukrainians who arrived after March 1. Ukrainians may apply for TPS once the immigration status reaches the Federal Register, at which point the 18-month window begins. The DHS has the ability to extend TPS if a country remains unsafe to repatriate.

Most undocumented Ukrainians in the U.S. arrived after Russia’s 2014 invasion of Crimea, said Kirkland & Ellis pro bono partner Jacqueline Haberfeld. The majority are people ages 15 to 65 with high school diplomas and college degrees who likely overstayed student, tourist or work visas. Three-quarters are working.

If their TPS is approved, the refugees can then apply for employment authorization. The respective applications cost $50 and $410; fee waivers exist for both.

Anticipating that the TPS will enter the Federal Register in a matter of weeks, Haberfeld said a project started by Lawyers for Good Government and Kirkland has assembled a network of law firms around the country with dedicated pro bono counsels, and has recruited a list of nearly 1,125 attorneys who have volunteered to help undocumented Ukrainian refugees fill out and submit their TPS applications, including more than 170 attorneys at Kirkland & Ellis.

The law firms are working with Ukrainian bar associations, churches, newspapers and local Ukrainian organizations to spread the word about pro bono counsel for TPS applications.

Davis Wright Tremaine chief pro bono and social impact officer Joanna Boisen said the TPS is a “game changer” for U.S. attorneys looking to help Ukrainian refugees.

“For national law firms that are 5,000 miles away, how do we contribute something meaningful? What people need is blankets, food and medical supplies,” Boisen said. “Now that there are additional legal protections, we can think about how we can leverage our skills to be of service.”

Boisen said each application may take five to 10 hours of attorney time, providing a “discrete and meaningful” way to help. There are stakes involved in each form, however. Applications typically include questions about human rights violations, criminal offenses, communicable diseases, even the practice of polygamy. An adverse response to any question could lead to a denial of TPS.

Haberfeld said the lawyers on her pro bono list will receive training to maximize their clients’ chances of obtaining TPS. She urged attorneys who aren’t qualified to advise clients on types of work they may be approached to handle to wait for other opportunities to help or seek opportunities with more support.

“For those who are frustrated by their inability to help, the advice is to sit tight. Other opportunities related to Ukraine are going to become available as time passes,” she said. “We urge patience, and seeing where the needs arise.”

In Poland, Phones Keep Ringing

At the Polish offices of Miller, Canfield, Paddock and Stone, a dozen lawyers are working exclusively on pro bono Ukraine refugee aid. Principal Richard Walawender, who is based in Detroit but has been communicating with the attorneys in Poland, said the team fielded about 100 calls over three days from Ukrainians trying to find safe routes out of the country and those already in Poland.

For the latter group, the lawyers are helping some of the 1 million Ukrainian refugees in Poland register with the Polish government. By doing so within 90 days of arriving in Poland, the refugees can get jobs, enroll their children in schools, and access health care for a minimum of 18 months, Walawender said.

“The majority of it might not qualify as legal work,” said Walawender. “We’re trying to direct families to the right resources to be able to find other family members and employers who are looking for Ukrainian employees.”

In Prague, White & Case is also staffing a legal aid hotline to assist refugees, a firm spokesperson said in an email.

Miller Canfield has received minimal requests for relocation to Western Europe, although Walawender said that may change in the coming weeks and months.

Pro bono counsel at several law firms agreed that Ukrainian refugees fleeing to the U.S. is very difficult and unlikely, given the welcoming stature of Poland and the European Union. Even if a Ukrainian national held a visitor visa, the status as a true “visitor” would likely be questioned at the border.

“The U.S. is very strict. If they think you’re coming permanently, it’s better to have a claim for asylum,” said Miller Canfield immigration practice lead Julianne Sharp. “There may be a basis for an asylum claim, but it’s a tricky situation because our immigration laws are very strict.”

Asylum seekers must already be in the U.S. and prove they cannot return to their home country because of a legitimate fear of persecution due to an individual attribute. Any Ukrainian refugee who made it to the U.S. would likely not qualify as an asylum seeker, pro bono counsels said, unless a Russian occupation of Ukraine put them in danger of persecution because of their strong national identity.

The TPS Double Standard

While Ukraine swiftly received TPS after the Russian invasion, countries with ongoing conflicts such as Ethiopia, Mauritania and Cameroon have not. Haberfeld is among the immigration organizations and human rights activists who note the contrast between the treatment of those countries and Ukraine.

“Large numbers of undocumented people who cannot safely return home have been waiting for TPS and they haven’t gotten it. They can’t work and live here without status, so they live in the shadows, they get exploited as workers, they’re vulnerable to trafficking, hunger, and poverty,” Haberfeld said. “They’ve been waiting for TPS for months, whereas Ukrainians, who deserve it, got it in eight days.”

Reprinted with permission from the March 7, 2022 edition of The American Lawyer. Further reproduction without permission is prohibited.