My question is simple: as a Cuban with a CU-6 category married to a non-Cuban who entered the country legally and who lives with me here in the USA, do I have to file a I-130 in addition to all the other documents needed to change her status? or can she just change her status as the wife of a Cuban under the Cuban Adjustment Act like I did after I had been here for a year and a day????
Thank you for your inquiry. The short answer to your inquiry is no, a Form I-130 need not be filed. The Cuban Refugee Adjustment Act ("CRAA") is an interesting piece of the immigration law which is in many ways set apart from the more routine applications for adjustment of status (Form I-485) which are filed with USCIS and the Immigration Courts in the US.
The CRAA generally provides that the spouse and children of a Cuban national who is eligible for consideration for adjustment of status under the CRAA can themselves file an application for adjustment of status under the CRAA. The first step in the analysis is to always make sure that the Cuban national upon whom the spouse and child seek classification under the CRAA is himself qualified under the CRAA. If this sounds complicated, let me explain a little further.
Not every Cuban national who is physically present in the US is eligible to apply for adjustment of status under the CRAA. Eligibility can sometmes depend on how (or under what circumstances) the Cuban national last arrived in the US. For example, if the Cuban national initially arrived in the US as an immigrant (e.g. as the unmarried child of a US citizen), that Cuban national would not necessarily have been eligible for the benefits of the CRAA. And if the Cuban national was not eligible for consideration of the benefits described in the CRAA, that Cuban national's spouse and children would likewise NOT be eligible for consideration of an application for adjustment of status under the CRAA.
The I-130 is an immigrant visa petition which seeks to classify the beneficiary of such petition depending on their relationship to the petitioner. Additionally, the I-130 further classifies the beneficiary depending on the petitioner's immigration status in the US. For example, the immigration laws treat the spouse of a US citizen much differently from the spouse of a permanent resident. The great thing about the CRAA is that it essentially treats the spouses and children of an eligible Cuban national AS IF they were the spouse or child of a US citizen. So the CRAA allows spouses and children of certain Cuban nationals to receive immigration benefits that would otherwise not be available and likewise permits the spouses and children to receive those benefits in a rather expeditious manner.
Although the CRAA provides benefits to spouses and children, I would always recommend a consultation with an attorney knowledgeable in this area. The CRAA can be used effectively if the applicant knows what to expect. There are some complications that can arise and a good attorney will have the experience to recognize potential issues and provide strategies aimed at resolving any doubt.
Good luck and thank you for the opportunity to address your question through Avvo.
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