The United States has done much to open its doors to Ukrainian refugees fleeing the brutal Russian invasion that began in February 2022. Since that time, over 117,000 Ukrainians have entered the country under the innovative Uniting for Ukraine private refugee sponsorship program, in which I am a sponsor.
More Ukrainian refugees have been granted permission by the Biden administration to come but have not yet arrived. Some 154,000 have been admitted by other pathways, many of them before Uniting for Ukraine was established in April 2022.
The program has many virtues. Granting refuge to Ukrainians fleeing war and oppression is simultaneously a moral imperative, a way to bolster the American economy, and a win for the United States in the war of ideas against Russian President Vladimir Putin and other despots.
But unless Congress or President Biden act soon, this success may be seriously compromised. The vast majority of Ukrainians admitted over the last year have so far been given only a temporary right to live and work in the United States. When their time limits expire, they could be subject to deportation or at least be unable to work legally.
Ukrainians admitted under the Uniting for Ukraine program are granted residency and work rights for two years after arrival. For the earliest program participants, those rights will expire in April or May 2024. More will lose legal status thereafter. Ukrainians who reached the United States before April 11, 2022, have been given Temporary Protected Status, which offers similar residency and work permits. But TPS for Ukrainians is currently scheduled to expire on Oct. 19.
Biden could potentially extend both the TPS and Uniting for Ukraine deadlines by executive action. If he doesn’t, hundreds of thousands of Ukrainian migrants fleeing Putin’s war will be left in legal limbo, potentially subject to deportation. Even if few are actually deported, constant fear of that prospect makes it difficult to have anything approaching a normal life. Moreover, loss of work authorization will make many employers reluctant to hire Ukrainian migrants. That, in turn, would consign them to unemployment or to the black-market economy.
In addition to the obvious harm inflicted on the Ukrainians themselves, loss of legal status would also curtail their potential contributions to the US economy and society. A population living illegally in “the shadows” is much less likely to assimilate effectively. And people barred from working legally cannot make as big an economic contribution as they would otherwise. Among other things, they are unlikely to engage in entrepreneurship and scientific innovation of the kind to which immigrants disproportionately contribute.
One possible reason why the Biden administration set such short deadlines is it might have expected the war in Ukraine to be over by 2024, thereby enabling refugees to return home. But it is increasingly clear the war might well last much longer. Moreover, experience with past refugee crises shows that many migrants are — for good reason — unable or unwilling to return to their countries of origin even when the war ends.
Biden could potentially extend the Uniting for Ukraine and TPS deadlines through unilateral executive action. But such an executive fix would still leave refugees vulnerable to the whims of whomever sits in the White House. If Biden or a future president found it politically convenient to do so, they could easily terminate their rights or just let them expire again.
The best solution for this problem is for Congress to pass a Ukrainian Adjustment Act, giving Ukrainian migrants who have entered the United States during the war the right of permanent residency and work status. That would give them a secure status no longer subject to the vagaries of politically driven executive discretion.
Such adjustment acts have been repeatedly enacted for migrants fleeing war and tyranny admitted under previous exercises of the presidential parole power used to create Uniting for Ukraine, beginning with Hungarian refugees fleeing the 1956 Soviet invasion. Congress could easily do the same in this case. But it may need to act swiftly. Significant legislation of any kind will be hard to enact during the 2024 presidential election year.
An adjustment act need not provide a swift path to citizenship or access to welfare benefits if either is considered a problem (though evidence indicates that the vast majority of immigrants pay more into the government’s coffers than they take out). The most important thing is that it gives those who are covered permanent rights to live and work in the United States, similar to the rights enjoyed by current permanent residents with green cards.
One possible argument against a Ukrainian Adjustment Act is that it would be unfair to migrants fleeing similar war and oppression elsewhere. I agree the latter deserve permanent refuge as well. For example, Congress should also enact an Afghan Adjustment Act giving permanent sanctuary to refugees fleeing the cruel Taliban regime that seized power after the 2021 US withdrawal.
During the current war, I have also advocated giving refuge to Russians fleeing Putin’s increasingly repressive regime. That refuge, too, should be permanent. Afghans and Russians may have an even stronger rationale for permanent refuge than Ukrainians, because it seems likely that both those countries will have severely oppressive governments for years to come. The same reasoning applies to migrants fleeing horrific violence and oppression in Cuba, Haiti, Nicaragua, and Venezuela, to whom Biden extended the Uniting for Ukraine model in January.
But if it turns out that it is only politically feasible to enact an adjustment act for Ukrainians (because Ukrainian refugees enjoy broader political support than those from most other countries), that is better than refusing to enact such legislation for anyone until we can do it for everyone. The best should not be the enemy of the good.
Ultimately, it’s both wrong and against our interests to deport people fleeing war and oppression. It’s similarly harmful and unjust to consign them to a life in the shadows as illegal migrants. An adjustment act can easily avoid these problems.
Ilya Somin is a law professor at George Mason University, Simon Chair in Constitutional Studies at the Cato Institute, and author of “Free to Move: Foot Voting, Migration, and Political Freedom.” This article is adapted in part from a post published at The Volokh Conspiracy law and politics blog, hosted by Reason.