Temporary Protected Status for Ukraine: Selection and Eligibility
How a country lands on the TPS list, and which individuals actually qualify, are two very different questions under one statute.
When the Department of Homeland Security designated Ukraine for Temporary Protected Status in April 2022, weeks after the full-scale invasion began, the announcement drew attention to a relief program that most Americans encounter only in headlines: a humanitarian status that lets nationals of a country in crisis stay and work in the United States without becoming permanent residents. The Ukraine designation is a useful lens for two questions that often get conflated. First, how does a country end up on the TPS list at all? And second, once a country is designated, which individuals actually qualify? The two questions have very different answers, governed by different parts of the same statute and resting on very different kinds of discretion.
The statutory grounds for designating a country
Temporary Protected Status comes from a single provision of the Immigration and Nationality Act, codified at 8 U.S.C. § 1254a, enacted as part of the Immigration Act of 1990. The Secretary of Homeland Security — the authority originally vested in the Attorney General before the creation of DHS — may designate a foreign state, or a defined part of one, on one of three grounds set out in subsection (b)(1).
The first is ongoing armed conflict. Under § 1254a(b)(1)(A), the Secretary may designate a state where there is an ongoing armed conflict and, because of that conflict, requiring nationals to return would pose a serious threat to their personal safety. The second ground, in § 1254a(b)(1)(B), covers environmental disaster — earthquake, flood, drought, epidemic, or other event — that substantially disrupts living conditions and leaves the state temporarily unable to handle the return of its nationals. That ground carries a distinctive procedural requirement: the foreign state must officially request the designation. The third and most open-ended ground, § 1254a(b)(1)(C), reaches other extraordinary and temporary conditions that prevent safe return, unless the Secretary finds that permitting nationals to remain would be contrary to the national interest.
The Ukraine designation rested on the first and third grounds together. The Federal Register notice of April 19, 2022, cited the ongoing armed conflict and the extraordinary and temporary conditions that prevented Ukrainian nationals from returning in safety. No request from Kyiv was required, because the armed-conflict and extraordinary-conditions grounds do not impose one.
How a country actually gets selected
The statute names the grounds, but it leaves the choice to designate almost entirely to executive judgment. There is no application a country files to be added to the TPS list (with the narrow exception of the environmental-disaster ground’s request requirement), and no fixed metric — no casualty threshold, no disaster index — that triggers a designation automatically. The Secretary weighs country conditions, foreign-policy considerations, and the practical capacity of the foreign state to receive returnees, and then decides.
That discretion is also durational. An initial designation runs for a period the Secretary sets at not less than 6 nor more than 18 months under § 1254a(b)(2). At least 60 days before a designation ends, the Secretary must review conditions and decide whether to extend it — in increments of 6, 12, or 18 months — or to terminate it. Ukraine’s initial designation ran 18 months, from April 19, 2022 through October 19, 2023, and has been extended and redesignated since. A designation becomes effective only when published in the Federal Register, which must include the findings supporting it and an estimate of how many nationals are likely to be eligible.
Congress wrote a no-review clause into the statute. Section 1254a(b)(5)(A) provides that there is no judicial review of any determination with respect to the designation, termination, or extension of a designation. Courts have generally read that bar to cover the substantive country-conditions judgment itself, while leaving room — drawing on the presumption favoring review of agency action recognized in cases such as McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991) — to test whether the agency followed the procedures the statute requires. The line between an unreviewable substantive choice and a reviewable procedural defect remains contested.
Who qualifies once a country is designated
Designation opens a door; it does not push anyone through it. An individual must independently satisfy the eligibility requirements in § 1254a(c)(1) and register during the period DHS sets. Two presence requirements do most of the work. The applicant must have been continuously physically present in the United States since the effective date of the designation, and must have continuously resided in the United States since a date the Secretary designates — a date that is usually slightly earlier and is fixed in the same Federal Register notice.
For Ukraine, the notice set continuous residence as of April 11, 2022, and continuous physical presence as of April 19, 2022. The practical effect is decisive: TPS reached Ukrainian nationals who were already inside the United States on those dates — students, visitors, workers, and others whose temporary stay had been overtaken by the war — not those still in Ukraine or in transit. Someone who arrived after the cutoff cannot qualify through that designation, however compelling the circumstances. The statute also requires that the applicant be admissible as an immigrant, subject to waivers for many grounds, and that registration occur during a window of at least 180 days.
The bars that disqualify an otherwise-eligible applicant
Even an applicant who meets the presence and registration requirements can be barred. Under § 1254a(c)(2)(B), TPS is unavailable to anyone convicted of any felony or of two or more misdemeanors committed in the United States. The provision also incorporates the asylum bars of § 1158(b)(2)(A), which exclude, among others, those who ordered or participated in the persecution of others and those who present certain serious criminal or security concerns. These are categorical disqualifications, not discretionary factors, and they apply regardless of how strong the humanitarian case otherwise appears.
What TPS does and does not give the holder
TPS protects a holder from removal during the designated period and authorizes employment, typically documented by an employment authorization document. It does not, by itself, create a path to permanent residence. The Supreme Court underscored the point in Sanchez v. Mayorkas, 593 U.S. 409 (2021), holding unanimously that a grant of TPS is not an “admission” for purposes of adjustment of status, so a TPS holder who entered the country unlawfully generally cannot adjust to lawful permanent resident on the strength of TPS alone.
That limitation also clarifies how TPS relates to the parallel relief offered to Ukrainians. The Uniting for Ukraine process, launched in 2022, is a discretionary humanitarian-parole mechanism that allows nationals abroad to enter for a temporary period with a U.S.-based financial supporter. Parole and TPS are distinct: parole is a tool for admitting people from outside the country, while TPS is a status for those already present, and an individual may in some circumstances hold both. Neither is, on its own, lawful permanent residence. For readers tracing how temporary protections interact with the broader rights of noncitizen workers and tenants, the journal’s coverage of employee rights in remote work and of tenant protections under AB 1482 illustrate how status often shapes the practical scope of those rights.
A status defined by its impermanence
The word “temporary” carries real weight. Because the program turns on conditions that the Secretary periodically re-evaluates, and because the designation decision sits at the discretionary, largely unreviewable core of the statute, every TPS holder lives with the prospect of termination. The 2025 efforts to wind down designations for other countries, and the litigation they spawned, are a reminder that what an administration grants another may revise. Ongoing developments in TPS litigation are tracked in the journal’s case tracker, and further analysis appears in its commentary. The Ukraine designation shows the program working as designed: a fast, executive response to a sudden crisis, extended by review rather than guaranteed by right, available only to those who were already here and who clear the statute’s bars. Its strength — speed and flexibility — is inseparable from its central limitation, which is that it was never meant to last. This publication offers commentary and analysis, not legal advice.
Questions readers ask
On what grounds can the government designate a country for TPS?
Three, under 8 U.S.C. § 1254a(b)(1): ongoing armed conflict; environmental disaster such as an earthquake, flood, drought, or epidemic; and other extraordinary and temporary conditions that prevent nationals from returning safely. Only the environmental-disaster ground requires the foreign state to request the designation.
Who decides which countries receive TPS?
The Secretary of Homeland Security, exercising authority originally given to the Attorney General. The decision rests on the Secretary’s assessment of country conditions and related considerations; the statute sets no automatic numeric trigger.
Can a TPS designation be challenged in court?
Section 1254a(b)(5)(A) bars judicial review of the designation, termination, or extension decision itself. Courts have generally allowed challenges to the procedures used to reach a decision while treating the substantive country-conditions judgment as unreviewable. The boundary remains litigated.
What were the eligibility dates for Ukraine’s 2022 designation?
Applicants had to have continuously resided in the United States since April 11, 2022, and have been continuously physically present since April 19, 2022, the effective date set in the Federal Register notice.
Could Ukrainians still in Ukraine apply for TPS?
No. TPS reaches only people already present in the United States by the cutoff dates. Those still abroad turned instead to mechanisms such as the Uniting for Ukraine parole process.
What is the difference between TPS and Uniting for Ukraine?
Uniting for Ukraine is a discretionary humanitarian-parole process for nationals entering from abroad with a U.S.-based supporter; TPS is a status for nationals already in the country. They are legally distinct, and a person may hold both, but neither is permanent residence.
How long does a TPS designation last?
An initial designation runs from 6 to 18 months under § 1254a(b)(2). At least 60 days before it ends, the Secretary reviews conditions and may extend it in 6-, 12-, or 18-month increments or terminate it. Ukraine’s initial period was 18 months.
What criminal record bars someone from TPS?
Under § 1254a(c)(2)(B), any felony conviction or two or more misdemeanors committed in the United States disqualifies an applicant, as do the asylum bars in § 1158(b)(2)(A), including the bar for persecutors and certain serious criminal or security grounds.
Does TPS lead to a green card?
Not by itself. In Sanchez v. Mayorkas, 593 U.S. 409 (2021), the Supreme Court held that a grant of TPS is not an admission, so a holder who entered unlawfully generally cannot adjust to permanent residence on the basis of TPS alone.
Does TPS allow the holder to work?
Yes. A TPS holder is protected from removal during the designated period and is eligible for employment authorization, usually documented by an employment authorization document.
Can a TPS designation be ended?
Yes. Because TPS turns on conditions the Secretary periodically re-evaluates, a designation can be terminated when the Secretary finds the qualifying conditions no longer exist, subject to the statute’s notice and review requirements.
