Adjustment of Status for Cuban Natives and Citizens

 

Introduction

Cuban Adjustment ActThe Cuban Refugee Adjustment Act (CAA)1 contains special provisions for the adjustment of status of natives or citizens of Cuba and their immediate relatives. Generally, a qualifying Cuban will be allowed to apply for adjustment of status after 1 year elapses from being admitted or paroled into the United States, and the same applies for immediate relatives. Under certain circumstances, a Cuban may be eligible even if he or she entered without inspection (EWI). This article will examine the rules for adjustment of status for Cubans and their immediate relatives.

Rules for CAA Adjustment of Status for Natives and Citizens of Cuba

  • Admission and Physical Presence

In order for a native or citizen of Cuba to be eligible for CAA adjustment or status, one year must have passed since he or she was admitted to or paroled into the United States. Pursuant 8 C.F.R. § 245.2(a)(4)(iii), temporary absences in that one year do not render the Cuban [the regulation applies broadly to adjustment of status in general] ineligible so long as there was no intention of abandoning residence in the United States, and the Cuban was admitted or paroled upon returning.

Provided that the applicant was admitted, no other status is necessary for eligibility to apply for CAA adjustment. The applicant need not demonstrate that he or she has a fear of returning to Cuba in order to be eligible. A Cuban native or citizen who enters the United States on a nonimmigrant visa will be eligible to adjust status so long as he or she stays in the United States for a year after inspection and admission. Cubans who enter the United States under the visa waiver program (VWP) will also be eligible for adjustment of status.2 A Cuban may adjust even if he or she is a citizen [or also a citizen] of another country aside from Cuba.3

  • Admissibility

The Cuban must be admissible to the United States in order to be eligible for CAA adjustment. Applicants are exempt from the public charge ground of inadmissibility, and from grounds of inadmissibility pertaining to EWI provided that they were subsequently paroled into the United States.4 If the Cuban is inadmissible on any other grounds, he or she will be required to apply for and be granted a waiver of inadmissibility in order to be eligible for CAA adjustment. The waiver must be filed on a Form I-601, Application for Waiver of Grounds of Inadmissibility. However, if the applicant is a refugee or asylee admitted under INA §§ 207 or 208, or if the applicant was paroled into the United States as a refugee before April 1, 1980, he or she may file a Form I-602, Application By Refugee for Waiver of Grounds of Excludability.5

  • Parole After EWI

A Cuban who enters the United States without inspection may be eligible for adjustment of status provided that he or she obtains parole.6 Generally, USCIS field officers are instructed to exercise their discretion favorably in granting parole to Cubans who entered without inspection.7 After EWI, a Cuban may not apply for CAA adjustment before an immigration judge unless he or she is under a grant of advance parole.8

Rules for CAA Adjustment of Status for Immediate Relatives of Natives and Citizens of Cuba

  • General Rules

Spouses and children of the Cuban native are citizen are eligible for CAA adjustment under the same rules, provided that the spouse or child resides with the Cuban.9 The spouse or child does not need to be a native or citizen of Cuba in order to be eligible for CAA adjustment. However, in the event that the immediate relative would not be eligible for Cuban adjustment in his or her own right, he or she would be ineligible for Cuban adjustment in the event that the principal has been naturalized.10 The immediate relative may apply for adjustment alongside the principal, or after the principal has already adjusted to LPR status.11 However, the immediate relative, unless he or she is independently eligible for CAA adjustment, may not apply for the special adjustment of status before the principal does.12 The immediate relative shall be eligible for adjustment of status under the CAA's provisions provided that the relationship to the principal exists at the time of the adjustment application, and the principal has not already been naturalized.13

  • Violence Against Women Act Provisions

If the spouse or child of a Cuban native or citizen demonstrates battery, abuse, or extreme cruelty at the hands of the Cuban spouse, he or she need not reside with the Cuban in order to be eligible for CAA adjustment.14 A battered spouse may self-petition for adjustment of status 2 years after the termination of a marriage to a Cuban native or citizen if he or she demonstrates a connection between the termination of the marriage and the abuse by the Cuban spouse.15 However, even under these provisions, the adjustment application may be denied if the spouse would have been ineligible for CAA adjustment on account of reasons other than domestic violence.16 Similarly, in the absence of abuse, a widow may self-petition within 2 years of the death of the Cuban spouse, although the application will not be approvable if it is determined that the deceased Cuban spouse would not have been eligible for CAA adjustment.17

  • Special Scenarios for Family Members and CAA Adjustment

The Administrative Appeals Office (AAO) held in 2008 that the immediate relatives of a Cuban native or citizen who obtained his status through the Nicaraguan Adjustment and Central American Relief Act (NACARA) was eligible for CAA adjustment because status through NACARA constituted “admission,” and the Cuban would have been eligible for CAA adjustment.18 However, the AAO held in 2005 that a Cuban who entered as a refugee, and who thus was not paroled, inspected, or admitted on a nonimmigrant visa, could not transmit CAA eligibility to his spouse.19

Application Process

A CAA adjustment application is filed on the Form I-485, Application to Register Permanent Residence or Adjust Status, along with its filing fee. Specifically for CAA adjustment applicants, they will need to ensure that they have proof of admission or parole at least 1 year before applying for adjustment, proof of 1 year's physical presence in the United States, and proof of Cuban nationality or citizenship.

Effective Date of LPR Status

When a Cuban native or citizen adjusts status under the CAA, the effective date of LPR status is 30 months prior to filing for adjustment, or the LPR's last arrival into the United States, whichever is later.20 The same applies for immediate family members.21 The effective date of LPR status is significant for eligibility for naturalization or cancellation of removal, both of which require that a certain amount of time has been spent on LPR status.

Conditional Repeal

The Cuban Refugee Adjustment Act may be repealed by the President when he or she determines that a democratically elected government is in power in Cuba. However, any applicants with pending adjustment of status applications under the CAA will be exempt from the repeal.22

Cuban Parole Programs

There are several special parole programs available for Cubans. The Cuban Lottery/Cuban Family Reunification Program is a special lottery for Cubans, and persons who are selected may migrate to the United States.23 Family members who are the beneficiaries of approved family-based petitions and who would not qualify for CAA adjustment may be paroled into the United States while waiting for their priority dates.24 In the case of F2A visa beneficiaries [spouses and children of LPRs], their petitions are processed as regular immigrant visa applications rather than through the special parole program.25 There are also special parole programs for Cuban medical professionals and Cubans from Guantanamo.26

Advice

To say that the CAA adjustment provisions are generous would be an understatement. So long as a Cuban is admitted or paroled into the United States, the only complication he or she should face when applying for adjustment after 1 year of presence in the United States are if he or she has any grounds of inadmissibility. In the event the beneficiary may want to allow immediate family members to seek CAA adjustment, he or she should bear in mind that, upon being naturalized, his or her immediate family members will no longer be eligible for CAA adjustment (unless they are independently eligible as Cuban natives or citizens). Furthermore, children of Cuban natives and citizens are only eligible for CAA adjustment provided that they are unmarried and less than 21 years of age.

Cuban natives or citizens who entered without inspection or Cuban natives or citizens with unwaived grounds of inadmissibility should definitely consult with an experienced immigration attorney to work toward becoming eligible for CAA adjustment. Furthermore, despite the generosity of the CAA adjustment provisions, a CAA adjustment applicant is well-advised to consult with an experienced immigration attorney for assistance in properly filing the adjustment application with all of the evidence and information required for approval.

With the recent changes in relations between the United States and Cuba, any moves toward the eventual repeal of Cuban Refugee Adjustment Act bear watching. However, given that Cuba does not seem to be on the precipice of democratic elections, and given the uncertainly of American politics as it relates to Cuba, repeal of CAA is still likely a ways off. In any case, any adjustment applications pending in the event of CAA repeal would be fully adjudicated. However, for purpose of obtaining immigration benefits and eventually being naturalized, it is always best, in any case, for persons eligible for CAA adjustment to apply for adjustment of status as soon as they are eligible to do so.

_________________________

  1. I. Kurzban, Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool (AILA 14th Ed. 2014) 828, citing, PL 89-732, 80 Stat 1161 (1966); H.R. Rep. No 89-1978, reprinted in 1996 U.S.C.C.A.N. 3792
  2. Kurzban 829, citing, In re A76-940-152 (AAO Aug. 10, 2000), reported in 77 No. 34 Interpreter Releases 1291, 1292 (Sept 1. 2000).
  3. Kurzban 829, citing, Matter of ___ (AAO Dec. 16, 2002), reported in 80 No. 5 Interpreter Releases 156 (Feb. 3, 2003)
  4. “Green Card for a Cuban Native or Citizen,” USCIS, March 22, 2011
  5. Kurzban 829, citing AFM 23.11(l)
  6. Kurzban 829, citing, Memo, Meissner, Comm. “Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite Having Arrived at a Place Other than a Designated Port of Entry” HQCOU 120/17-P (Apr. 19, 1999), reprinted in 76 No. 17 Interpreter Releases 676, 684-90 (May 3, 1999)
  7. Kurzban 829, citing, Memo, Bugler, Chief, Office of Field Operations, USCIS, HQ 70/10.10 (Feb 3. 2009), published on AILA InfoNet at Doc. No. 09030962
  8. Kurzban 829, citing, Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009); 8 C.F.R. § 245.2(a)(1) and 8 C.F.R. § 1245.2(a)(1)(ii)
  9. Kurzban 828, citing, Gonzalez v. McNary, 980 F.2d 1418 (11th Cir. 1993)
  10. Kurzban 828, citing, Matter of Coto, 13 I&N Dec. 740 (BIA 1971); Matter of ___ (AAO Mar. 24, 2008), reprinted in 86 No. 3 Interpreter Releases 243 (Jan. 16, 2009)
  11. Id.
  12. Id.
  13. Kurzban 828, citing, Matter of Millan, 13, I&N Dec. 480 (A.R.C. 1970). AFM 32.11(e)
  14. Kurzban 828
  15. Id., citing §823(a) of the VAWA Reauthorization Act of 2005, PL 109-162, PL 109-271
  16. Kurzban 828, citing, Toro v. Secty. Of Homeland Security, 707 F.3d 1224 (11th Cir. 2013)
  17. Kurzban 828, citing § 823(a) of the VAWA Reauthorization Act of 2005, PL 109-162, PL 109-271
  18. Kurzban 828, citing, Matter of ___, 2008 WL 2741838 (AAO Feb. 1, 2008)
  19. Kurzban 828, citing, Matter of ___, (AAO Feb. 18, 2005), 2005 WL 2101359
  20. Kurzban 829, citing Cuban Refugee Adjustment Act, § 1; 8 C.F.R. § 245.2(a)(5)(iii).
  21. Kurzban 829, citing, Matter of Rivera-Rioseco, 19 I&N Dec 883 (BIA 1988)
  22. Kurzban 830, citing § 203(c)(3) of PL 104-114; IIRIRA § 606
  23. Kurzban 830
  24. Id., citing Cuban Family Reunification Parole Program, 72 FR 65588 (Nov. 21, 2007)
  25. Kurzban 830, citing Changes in USINT Havana Consular Processing Procedures for F2A Visa Applicants, published on AILA InfoNet at Doc. No. 10102963
  26. Kurzban 830

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: ALIA Publications, 2014. 828-830. Print. Treatises & Primers.

“Green Card for a Cuban Native or Citizen,” USCIS, March 22, 2011, available at http://www.uscis.gov/green-card/other-ways-get-green-card/green-card-cuban-native-or-citizen [link]