THE CUBAN ADJUSTMENT ACT
This is an overview of the legal parameters and benefits of the Cuban Adjustment Act of 1966. It also discusses the Cuban Family Reunification Parole Program. Please contact a licensed attorney specializing in immigration law to review your specific case.
The BasicsThe Cuban Adjustment Act of 1966 ("CAA") provides a route to legal permanent residency ("LPR") for Cubans and their spouses and children through adjustment of status. To qualify for adjustment as the principal applicant, one must satisfy several requirements:
a. be a native or citizen of Cuba;
b. have been inspected, admitted or paroled;
c. be physically present in the United States for more than one year; and
d. be admissible to the United States for lawful permanent residency.
The usual bars to adjustment under INA * 245(c) do not apply to CAA applicants. In other words, the following persons can apply: i. Crewmen (entrants under C-1 or D-1 visas), ii. overstays, iii. transit visa entrants, iv. those who have worked without authorization, or v. those who have entered through the Visa Waiver Program.
Proof of CitizenshipA United States Citizenship and Immigration Services ("USCIS") memo dated Nov. 17, 2107 set a new policy on determining Cuban citizenship for persons born outside of Cuba to at least one Cuban citizen. The main change is that the individual's consular certificate documenting the birth must have been formally registered in Cuba with the Cuban Ministry of Justice.
Wet Foot, Dry Foot: Changes to "inspected, admitted or paroled"Between 1994 and 2017, the U.S. government operated a policy toward Cuban immigrants known as the Wet-Foot/Dry-Foot policy. This policy was not technically binding on Immigration Courts. Nonetheless, the vast majority of Cuban nationals who arrived "at a place other than a port of entry" benefited from this policy and were deemed eligible for adjustment of status under the CAA. Specifically, "if the Service release[d] from custody an alien who [wa]s an applicant for admission because the alien [wa]s present in the United States without having been admitted," the Service would treat the alien as having been paroled into the United States. This now defunct Wet-Foot/Dry-Foot policy effectively allowed the majority of Cubans who entered the U.S. to remain eligible under the CAA irrespective of the alien's actual manner of entry.
Filing RequirementsTo file, we must prepare -
1. Form I-485, Application to Register Permanent Residence or Adjust Status.
2. The fee for Form I-485
3. Form G-325A, Biographic Information.
4. Form FD-258, Fingerprint Chart.
5. 2 Passport-style Photos.
6. Form I-693, Medical Report.
7. Form I-643, Health and Human Services Statistical Data Sheet.
8. A clearance from the local police jurisdiction for any area in the U.S. where the applicant has lived for six months or more since the applicant's 14th birthday.
Regarding Spouse / DependentsA qualifying CAA applicant may also seek to adjust the status of her or his non-Cuban spouse or child, regardless of their nationality or place of birth, under * 1 of the CAA. The spouse must must reside with the principal applicant and meet all the eligibility criteria for Cuban adjustment listed above. There are exceptions for cases of domestic violence. The qualifying marriage can have occurred before or after the Cuban adjusts.
Dependents cannot adjust before the principal applicant adjusts or if the principal has already naturalized. Dependents can adjust so long as she or he could qualify under the CAA, even in cases where the Cuban spouse or parent had not obtained permanent residency using the CAA.
InadmissibilityCAA applicants are exempt from some of the inadmissibility grounds of INA * 212(a), namely:
a. The public charge ground;
b. The labor certification ground;
c. Arrival at a place other than a port of entry; and,
d. The documentation ground.
Do note that other inadmissibility issues relating to crime still apply, including those related to fraud, terrorism and membership in a totalitarian party. Where the applicant has a criminal conviction in Cuba, USCIS requires that a sworn statement be submitted detailing the arrest(s), charge(s), outcome of any proceeding(s) and whether the individual was imprisoned.
CAA applicants who are inadmissible must seek a waiver using Form I-601 under INA * 212(g), (h), or (i), as applicable. Waiver applications should describe in detail the special circumstances of the Cuban applicant and the current political situation in Cuba, as these are factors USCIS takes into account in its determinations.
Refugee Status Not RequiredCubans who use the CAA to adjust are allowed to return to Cuba without risk to their status. CAA applicants do not need to meet the definition of a refugee. These applicants do not need to express a fear of persecution from the Cuban government in order to qualify for Cuban adjustment. Thus, an applicant can travel back to Cuba without negatively affecting this person*s eligibility for LPR status or ability to naturalize; though applicants must continue to satisfy physical presence and continuous residence requirements.
Communist Party MembershipThough membership in a totalitarian party, like the communist party, can be a reason for denial of adjustment, INA * 212(a)(3)(D) provides exceptions for memberships that: i. was involuntary or where membership was solely when under the age of 16; ii. was by operation of law; iii. was necessary for purposes of obtaining employment, food rations or other essentials of living; or iv. was a past membership which had been terminated at least five years before the date of application for admission. An exception also exists for close relatives of USCs and LPRs for humanitarian purposes, to assure family unity or when it is otherwise in the public interest. If it is determined that the applicant may be inadmissible as a member of the Communist party, USCIS will require a detailed sworn statement explaining this membership.
Rollback BenefitsThe CAA grants applicants the benefit of an earlier, rolled-back "admission date." The final admission date for permanent residence will be either 30 months before the filing of the application or the date of the individual*s last arrival in the United States, whichever date is later. As normal, the individual will be eligible to adjust after five years as a permanent resident. But this rollback benefit enables the individual to qualify for naturalization in a shorter amount of time.
Derivative beneficiaries, such as a non-Cuban spouse or children of the qualifying Cuban applicant, are also granted the benefit this rollback provisions, even if this results in the beneficiary becoming an LPR before the date on which the individual became the Cuban applicant*s spouse or child.
Cuban Family Reunification Parole ProgramWhen the CAA is not an option, Cuban nationals should explore special parole programs with their U.S. Citizen and LPR family members. These family members may be able to file family-based petitions to help their Cuban relatives immigrate to the U.S. For example, under the Cuban Family Reunification Parole Program ("CFRPP"), Cubans with approved family petitions can be paroled into the U.S. and wait here for their priority dates to become current. Once in the U.S., CFRPP allows these individuals to apply for work authorization while they wait for their immigrant visa to become available (or while waiting the one-year to apply for permanent residency under the CAA). A CFRP petitioner must meet these requirements:
a. Be a U.S. citizen or lawful permanent resident;
b. Have an approved Form I-130 for a Cuban family member;
c. This Cuban beneficiary must i. be living in Cuba, ii. pass a medical examination, iii. be admissible to the U.S., and iv. warrant a favorable exercise of discretion
d. The immigrant visa is not yet available; and
e. The National Visa Center ("NVC") has invited the petitioner to participate in the CFRP Program.
Note that on Aug. 23, 2016, the NVC resumed issuing invitations to apply for CFRPP.