Seven Things You Should Know About Cuban Adjustment
Enacted in 1966, the Cuban Adjustment Act (CAA) allows Cubans and their spouses and children to become permanent residents through adjustment of status. The law provides humanitarian relief to Cubans who are presumed to be political refugees and cannot seek residence through other avenues. 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 residency. The usual bars to adjustment under INA § 245(c) do not apply to Cuban adjustment. This article addresses some common questions about Cuban adjustment.
The non-Cuban spouse or child of a qualifying Cuban applicant may also adjust status under section 1 of the Cuban Adjustment Act. That is true regardless of his or her nationality or place of birth. The non-Cuban spouse must meet all the other eligibility criteria for Cuban adjustment stated above, and must reside with the principal applicant. See Matter of Bellido, 12 I. & N. Dec. 369 (R.C. 1967). There is an exception to this requirement related to domestic violence, which is discussed below. A qualifying marriage can occur at any time – before or after the Cuban adjusts. Matter of Milian, 13 I. & N. 480 (A.R.C. 1970). However, the dependent cannot adjust before the principal does. Nor can dependents adjust under the CAA if the principal has already naturalized. Dependents can adjust even if the Cuban spouse or parent did not obtain permanent residency through the CAA, as long as he or she could 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 in order 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 requirement of residency with the Cuban spouse does not apply in situations of abuse. 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 marital relationship was legally terminated due to abuse not more than two years ago; or the qualifying Cuban principal died not more than two years ago and the spouses resided together at some point during the relationship. USCIS released a policy memo July 29, 2016, providing additional guidance on the implementation of these provisions. The spouse or child must demonstrate their relationship to the Cuban principal and that the principal subjected him or her to battery or extreme cruelty during the relationship. USCIS should accept any credible evidence documenting the relationship and the abuse. There is no need to submit an I-360 VAWA self-petition along with the I-485, but similar evidence would be used to document the battery or extreme cruelty. The application should be adjudicated by the Vermont Service Center VAWA Unit. Though the VSC may refer the case to a field office for an interview, the VSC will make the determination on abuse. The VAWA confidentiality requirements of 8 USC § 1367 continue to apply to VAWA CAA applicants as they do in all VAWA cases.
Cubans benefit from rollback provisions that back date their admission to permanent residence. Typically, when one adjusts under INA § 245, the date of admission for lawful permanent residence is the date on which the case is completed and the adjustment approved. Under the CAA, the admission date for permanent residence is rolled back 30 months before the filing of the application or to the date of the individual’s last arrival in the United States, whichever date is later. For example, Arturo last arrived in the United States in January 2014. He later applies for adjustment under the CAA and his case is approved on Sept. 1, 2016. The date of his admission to permanent residency will be March 1, 2014. Here, the 30-month rollback is his date of admission since it is later than the date he last entered the U.S. Arturo will be eligible to adjust after five years as a permanent resident, thus the rollback provision enables him to qualify for naturalization in a shorter amount of time.
The non-Cuban spouse and children of a qualifying Cuban applicant are entitled to the same rollback provisions as the principal, even if that means the individual becomes an LPR before the date on which 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, can 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 could be terminated. 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 with permanent resident status…”; or that she is no longer a refugee because country conditions have changed; or her claim to asylum was fraudulent. Those who adjust pursuant to the CAA are not required to meet the definition of a refugee. A person can qualify for Cuban adjustment even if they have no fear of persecution in Cuba. Therefore, travel back to Cuba does not necessarily affect eligibility for LPR status or ability to naturalize, as long as the applicant meets physical presence and continuous residence requirements.
While applicants for Cuban adjustment are exempt from some inadmissibility grounds, other grounds are of particular concern. Applicants for Cuban Adjustment are subject to the inadmissibility grounds at INA § 212(a). However, there are some exceptions: the public charge ground at 212(a)(4); the labor certification ground at 212(a)(5); arrival at a place other than a port of entry at 212(a)(6)(A); and the documentation ground at 212(a)(7) do not apply. Common inadmissibility issues include those related to crimes; fraud; terrorism bars; and membership in a totalitarian party. Keep in mind that with crimes an inadmissibility finding does not need to 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 prevailing U.S. standards. If an applicant has a criminal conviction from Cuba, USCIS will want a sworn statement from the applicant addressing details of the arrest, charges, the outcome of any proceedings, and whether the applicant was imprisoned. See Adjudicator’s Field Manual 23.11.
Cuban applicants may have been involved with or associated with the Communist party in the past. Note that INA § 212(a)(3)(D) includes an exceptions for involuntary membership or the membership or affiliation was solely when under the age of 16; by operation of law; or were necessary for purposes of obtaining employment, food rations or other essentials of living. Other exceptions include those for past membership which has been terminated at least five years before the date of application for admission; and an exception for close relatives of USCs and LPRs for humanitarian purposes, to assure family unity or when it is otherwise 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 sworn statement that includes information on: (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 duties and responsibilities of the applicant within the organization; (6) whether the applicant held an official title or office or was simply a member; and (7) if the applicant has terminated his or her membership, when and in what manner, this termination took place. AFM 23.11(k).
A Cuban adjustment applicant who is inadmissible must seek a waiver under INA § 212(g), (h), or (i). The waiver application is made on Form I-601, not on Form I-602, which is used for refugees who have been admitted under INA §§ 207 or 208. USCIS should take into considerations the special circumstances of the Cuban national and the political situation in Cuba when evaluating eligibility for an extreme hardship waiver.
Special parole programs for Cubans may be an option for reuniting families more quickly. If Cuban Adjustment is not an option, permanent residents and U.S. citizens may also file family-based petitions to help Cuban relatives immigrate to the United States. Under the Cuban Family Reunification Parole Program (CFRPP), beneficiaries of approved family petitions in the preference categories can be paroled into the United States while they wait for their priority dates to become current. Once in the United States, CFRPP beneficiaries may seek work authorization while they wait to apply for permanent residency after they have been present in the United States for at least one year or when their immigrant visas become available. To be eligible to apply for parole for relatives in Cuba under the CFRP program, the petitioner must meet the following requirements: be a U.S. citizen or lawful permanent resident; have an approved Form I-130 for a Cuban family member; an immigrant visa is not yet available for the relative; and the Department of State’s National Visa Center (NVC) has invited the petitioner to participate in the CFRP Program. On Aug. 23, 2016, the NVC resumed issuing written invitations to apply for CFRP. The principal beneficiary must be a Cuban national living in Cuba, must pass a medical examination, be admissible to the United States, and warrant a favorable exercise of discretion.