ALEJANDRO ROQUE., ESQ. | IMMIGRATION & CRIMINAL LAW ATTORNEY

Cuban Adjustment Act

I- Cuban Adjustment: Litigation pending in federal courts:

Since January 12, 2017, when the "wet foot/dry foot" policy was lifted, thousands of Cubans have been held in immigration jails upon entering the country, then released on bail or in a restraining order while their asylum applications were processed.

There is currently a lawsuit in federal court whose outcome could have a major impact on Cubans who have entered the U.S. illegally since January 2017. In the lawsuit, the plaintiffs allege that Cubans released on parole or supervision with a document known as the I-220A can fix their immigration status in the same way as those who obtained an admission document (I-94). What is being alleged, in essence, is that the I-220A is the equivalent of parole. If the plaintiffs are correct, then thousands of Cubans could apply for the Cuban Adjustment Act after completing one year and one day of physical presence in the U.S.

According to official DHS figures, between fiscal years 2017 and 2021, nearly 100,000 Cubans entered the United States illegally. Many of them were released with an I-220A supervisory document. From October 2019 to January 2022 alone, more than 64,000 Cuban migrants were processed at the southern border of the United States, a large number of them were released with an I-220A.

A number of Cuban immigrants who entered the United States illegally may soon have a solution for their applications for permanent residence, which have been rejected until now due to the lack of an official document of admission into the country. At least the immigration authorities have begun to send temporary entry documents (parole) to some Cubans who entered the United States illegally and were considered in the category of "arriving aliens," with no options to apply for residence under the Cuban Adjustment Act (CAA).

An “Arriving Alien” means an applicant for admission who comes to or attempts to enter the United States at a port of entry, or an alien seeking transit through the United States at a port of entry, or an alien intercepted in U.S. or international waters and brought to the United States by any means, whether or not at a designated port of entry, and regardless of the mode of transportation.

This program applies to all those who entered between January 12, 2017, when the "wet foot, dry foot" policy was canceled, and November 17, 2021. This program allowed Cubans who arrived by sea or crossed the border to apply for permanent residency after one year and one day.

The immigration document was published on February 23. Some lawyers think it could be the first step towards further changes in the current immigration policy towards Cubans.

II- What exactly is the Cuban Adjustment Act?

Through adjustment of status, the Cuban Adjustment Act of 1966 allows Cubans and their dependents to become legal permanent residents (obtain a green card). It was intended to allow thousands of Cuban refugees who could not return to Cuba for political reasons but were unable to obtain residency in the United States through other procedures.

To qualify for Cuban adjustment as a principal applicant, one must be a native or citizen of Cuba; have been inspected, admitted, or paroled; be physically present in the United States for more than one year; and be admissible to the United States for lawful permanent residence. The usual prohibitions on adjustment under INA § 245(c) do not apply to Cuban adjustment.

The non-Cuban spouse or child of a qualified Cuban applicant may also adjust status under section 1 of the Cuban Adjustment Act. That is true regardless of nationality or place of birth. The non-Cuban spouse must meet all of the other eligibility criteria for Cuban adjustment listed above and must reside with the principal applicant. See Matter of Bellido, 12 I. & N. Dec. 369 (RC 1967). There is an exception to this requirement related to domestic violence, discussed below. A qualifying marriage may occur at any time, before or after the Cuban adjusts. Matter of Milian, 13 I. & N. 480 (ARC 1970). However, the dependent cannot adjust before the principal does. Dependents also cannot adjust under the CAA if the principal has already naturalized. Dependents can adjust even if the Cuban spouse or parent did not obtain permanent residence through the CAA, as long as he or she can qualify under the CAA. Matter of Coto, 13 I. & N. 740 (BIA 1971).

A dependent subjected to battery or extreme cruelty is not required to reside with the abuser to qualify for Cuban adjustment. VAWA 2000 and VAWA 2005 amended the CAA to make it easier for survivors of domestic violence to qualify for Cuban adjustment. The residency requirement with the Cuban spouse does not apply in battering situations. An abused spouse or child of a Cuban principal may still adjust under the CAA even if he or she does not currently reside with the Cuban principal; the spousal relationship was legally terminated for abuse no more than two years ago; or the qualifying Cuban principal died no more than two years ago and the spouses resided together at some point during the relationship. USCIS published a policy memorandum on July 29, 2016, providing additional guidance on implementing these provisions. The spouse or child must demonstrate his or her relationship with the Cuban principal and that the principal subjected him or her to battery or extreme cruelty during the relationship. USCIS must accept any credible evidence documenting the relationship and the abuse. It is not necessary to file a VAWA I-360 self-petition along with the I-485, but similar evidence would be used to document the assault or extreme cruelty. The petition must be adjudicated by the VAWA Unit at the Vermont Service Center. Although the VSC may refer the case to a field office for an interview, the VSC will make the determination regarding abuse. The VAWA confidentiality requirements of 8 USC § 1367 continue to apply to VAWA CAA petitioners as they do in all VAWA cases.

Cubans benefit from reversion provisions dating from their admission to permanent residence. Typically, when adjusting under INA § 245, the date of admission for lawful permanent residence is the date the case is completed and the adjustment is approved. Under the CAA, the date of admission for permanent residence is reversed 30 months prior to the filing of the application or to the date of the individual's last arrival in the United States, whichever date is later.

The non-Cuban spouse and children of a qualified Cuban applicant are entitled to the same reversion provisions as the principal, even if that means the individual becomes an LPR before the date the individual became the Cuban applicant's spouse or child. See Silva-Hernandez v USCIS, 701 F.3d 356 (11th Cir. 2012).

Those who have adjusted under the CAA, unlike asylees, may return to Cuba without jeopardizing their status. Asylees adjust status under INA § 209(b), which requires that the individual continue to be considered a refugee within the definition of 101(a)(42)(A). If an asylee travels to her home country, there is a risk that her status will be rescinded. For example, if it is determined that she has “voluntarily availed herself of the protection of her country of nationality or last habitual residence by returning to such country in permanent resident status…”; or that she is no longer a refugee because conditions in the country have changed; or her application for asylum was fraudulent. Those who adjust under the CAA are not required to meet the refugee definition. A person may qualify for Cuban adjustment even if she does not fear persecution in Cuba. Therefore, traveling back to Cuba does not necessarily affect eligibility for LPR status or the ability to naturalize, provided the applicant meets the physical presence and continuous residence requirements.

While Cuban Adjustment applicants are exempt from some grounds of inadmissibility, other grounds are of particular concern. Cuban Adjustment applicants are subject to the grounds of inadmissibility in INA § 212(a). However, there are some exceptions: the public charge ground in 212(a)(4); the labor certification ground in 212(a)(5); arrival at a place other than a port of entry in 212(a)(6)(A); and the documentation basis in 212(a)(7) do not apply. Common inadmissibility issues include those related to crimes; fraud; terrorism bars; and membership in a totalitarian party. Please note that for crimes, a finding of inadmissibility need not be supported by a record of conviction if there is reason to believe that there has been a conviction and that the underlying crime involved moral turpitude under applicable U.S. standards. If an applicant has a criminal conviction from Cuba, USCIS will want an affidavit from the applicant addressing the details of the arrest, the charges, the outcome of any proceedings, and whether the applicant was incarcerated. See Referee Field Manual 23.11.

Cuban applicants may have been involved or associated with the Communist Party in the past. Note that INA § 212(a)(3)(D) includes exceptions for involuntary membership or membership or affiliation was only when under the age of 16; by operation of law; or was necessary to obtain employment, food rations, or other essentials of life. Other exceptions include those for former members who have terminated at least five years prior to the date of application for admission; and an exception for close relatives of USCs and LPRs for humanitarian purposes, to ensure family unity, or when in the public interest. When USCIS determines that an applicant may be inadmissible under 212(a)(3)(D)(i) as a member of the Communist Party, the adjudicator will require a detailed affidavit that includes information about: (1) the organization joined; (2) the date and place of joining; (3) an explanation of why the applicant joined; (4) the nature of the organization; (5) the applicant's duties and responsibilities within the organization; (6) whether the applicant held an official title or position or was merely a member; and (7) if the applicant has terminated his or her membership, when and how this termination was accomplished. AFM 23.11(k).

An applicant for Cuban adjustment who is inadmissible must apply for a waiver under INA § 212(g), (h), or (i). The waiver application is made on Form I-601, not Form I-602, which is used for refugees who have been admitted under INA §§ 207 or 208. USCIS must take into consideration the Cuban national's special circumstances and the political situation in Cuba when evaluating eligibility for an extreme hardship waiver.

III- Office of Immigration and Criminal Lawyer Alejandro Roque, ESQ. Law Firm

Contact your 12-year experienced immigration and criminal defense attorney Alejandro Roque, ESQ now for additional information on the topics discussed in this article, or for comprehensive legal assistance and strong representation.

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