\ afm \ Adjudicator's Field Manual - Redacted Public Version \ Chapter 23 Adjustment of Status to Lawful Permanent Resident. \ 23.11 Cuban Adjustment Act Cases.
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23.11 Cuban Adjustment Act Cases.
The Cuban Adjustment Act (Public Law 89-732) (CAA) became law on November 2, 1966. Section 1 of the Act was designed to permit thousands of Cuban refugees to adjust to lawful permanent residence. Most of these Cubans were parolees or nonimmigrants who could not return to Cuba for political reasons, but could not seek residence through other means. Similar laws have been passed over the years for other nationalities as well, e.g., Public Law 101-167 (for former nationals of the Soviet Union, Laotians, Cambod
ians, and Vietnamese).
In order to be granted adjustment under the CAA, an applicant must:
(1) Be a native or citizen of Cuba. An applicant could meet this requirement through any one of several different means. He or she could be:
A person who was born in Cuba, and is still a citizen of Cuba;
A person who was born in Cuba, but later became a citizen of some other country or became stateless;
A person who was born on the U.S. Navy Base at Guantanamo Bay, Cuba. Whether this person is or ever was considered to be a citizen of Cuba by the Cuban government, and regardless of any claims to other nationalities he or she might have through his or her parents, he or she is a native of Cuba simply by being born there. (For example, there were a number of pregnant women among those persons who fled Haiti in the 1990s and were subsequently intercepted at sea by the Coast Guard and transported to the Navy B
ase at Guantanamo Bay to await immigration processing. The babies born of those women at Guantanamo Bay meet this requirement.)
A person who was born outside of Cuba but has become a naturalized citizen of Cuba.
This bullet point revised 01-03-2007
.] For those who have never resided in Cuba, the most persuasive evidence of Cuban citizenship is a valid Cuban passport.
If a Cuban passport is unavailable, another official Cuban document, such as a Cuban Civil Registry document, a Cuban consular certificate of citizenship, or other document signed by a Cuban official with appropriate authority over the registration of citizens indicating that a named individual is a citizen, should be sufficient to establish citizenship.
Matter of Buschini
(June 30, 2006), USCIS Administrative Appeals Office Adopted Decision,
A consular certificate indicating that a person was born outside Cuba to a Cuban citizen parent, without any statement of citizenship, is not, ordinarily, sufficient to establish that a person is a Cuban citizen.
(2) Have been inspected and admitted or paroled into the U.S. after January 1, 1959. Any inspection and admission or parole, regardless of the classification of admission or purpose of parole, meets this requirement. See generally
Matter of Alvarez-Riera
, 12 I. & N. Dec. 112 (BIA 1967)
Matter of Rodrigue
12 I. & N. Dec. 549 (R.C. 1967)
Matter of Martinez-Monteagudo
, 12 I. & N. Dec. 688 (R.C. 1968)
(3) Have at least one year of aggregate physical presence in the U.S. before applying for benefits under section 1 of the CAA (amended from two years by the Refugee Act of 1980). However, if an applicant was admitted or paroled and later departed from the U.S. temporarily with no intention of abandoning his or her residence, and was readmitted or reparoled upon return, the temporary absence shall be disregarded for purposes of the applicant's "last arrival" into the U.S. See
8 CFR 245.2(a)(4)(iii)
Matter of Riva
12 I. & N. Dec. 56 (R.C. 1967)
. Factors to consider in determining whether the applicant did in fact have an unabandoned residence in the U.S. are: the duration of the trip abroad; the purpose of the trip; how long the applicant was in the U.S. before departure; and the applicant's family or employment ties in the U.S. Bear in mind, of course, that a subsequent reentry on a nonimmigrant visa to an "unabandoned residence" may have been accomplished by fraud.
An application for adjustment under the CAA may be denied as a matter of discretion if there are sufficient negative factors to overcome the positive ones (see the discussion on discretion in
). However, in weighing the discretionary factors, keep in mind the nature of the CAA and the political situation in that country (see
Matter of Mesa
, 12 I. & N. Dec. 432 (Dep. Asst. Comm’r, 1967)
Bars to Adjustment
The bars to adjustment enumerated in section 245(c) of the Act are inapplicable. Thus, the following aliens
seek adjustment under the CAA:
Transit without visa passengers;
Aliens who have worked without authorization; and
Aliens who were admitted as nonimmigrant visitors without visas under section 217 of the Act (the Visa Waiver Permanent Program, formerly known as the Visa Waiver Pilot Program).
The spouse or child of a qualifying Cuban applicant may also seek adjustment under section 1 of the Act regardless of his or her nationality or place of birth. He or she must, however, meet all the other eligibility criteria stated above, and must reside with the principal applicant. See
Matter of Bellido
, 12 I. & N. Dec. 369 (R.C. 1967)
. It is important to note that this is a very different standard from the one relating to spousal visa petition proceedings, where a petitioner need not prove marital viability, but rather that the marriage was valid at its inception.
The adjustment of the spouse or child can not precede the adjustment of the principal applicant; the adjustment must be completed at the same time as, or subsequent to, the principal's adjustment.
Matter of Coto
, 13 I. & N. 740 (BIA 1971). In addition, the qualifying relationship may have been created before or after the principal's adjustment.
Matter of Milian
, 13 I. & N. 480 (A.R.C. 1970)
Finally, the spouse or child of a Cuban applicant is adjusted as an unconditional permanent resident, regardless of the duration of the qualifying marriage. The restrictions of section 216 of the Act do not apply.
The inadmissibility grounds of section 212 of the Act apply, with the exception of
of the Act (see
Matter of Mesa
, 12 I. & N. Dec. 432 (Dep. Assoc. Comm’r, 1967)
of the Act. Furthermore, on April 19, 1999, INS issued a memorandum to all offices stating that “[t]he policy of the Service is that the inadmissibility ground that is based on an alien's having arrived at a place other than a port of entry
apply to CAA applicants. All Service officers adjudicating CAA applications will do so in accordance with this policy. So long as the applicant meets all other CAA eligibility requirements, it is contrary to this policy to find the alien ineligible for CAA adjustment on the basis of the alien's having arrived in the U.S. at a place other than a designated port of entry.” (The entire memorandum is reproduced in
Procedure for Applying
An applicant must submit:
(1) Form I-485, Application by Cuban Refugee for Permanent Residence.
(2) The fee for Form I-485, as specified in
8 CFR 103.7(b)
, or a request for fee waiver in accordance with
8 CFR 103.7(c)
. Fee waiver requests are to be adjudicated in accordance with October 1998 guidance issued by the Executive Associate Commissioner for Field Operations (see
(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 longer since his or her 14th birthday. See
8 CFR 245.2(a)(3)(i)
Proof of Eligibility
The documentation which must be submitted in support of the application depends, in part, on whether the applicant is a Cuban native or national, or a non-Cuban spouse or child of such applicant:
A qualifying Cuban applicant must present:
Evidence of lawful admission or parole into the U.S., e.g., a passport and I-94;
Evidence of Cuban nationality or birth in Cuba. This evidence should include at least one of the following: a Cuban passport; a Cuban birth certificate; or a Cuban naturalization certificate or certificate of citizenship.
A non-Cuban spouse or child must present:
A passport and I-94 reflecting lawful admission or an I-94 reflecting parole;
A marriage certificate for the present marriage;
Evidence of termination of all previous marriages; and
Evidence that the marriage has not been entered into solely to convey immigration benefits (i.e., with fraudulent intent).
A non-Cuban child must present:
A birth certificate;
If the principal applicant is the child’s father, evidence that the child meets the definition of child contained in section 101(b) of the Act (e.g., marriage certificate of the parents, evidence of legitimation, etc.)
All applications for adjustment of status under the CAA must be filed with the Texas Service Center, regardless of the applicant’s residence in the U.S.
Follow the procedural instructions outlined in
At the discretion of the
Service Center, the application may be referred to the appropriate local
office for interview. The interviewing procedures and techniques are essentially the same as those on a section 245 interview (see
). However, two areas of potential difficulty should be addressed:
When an applicant indicates the existence of possible ineligibility under 212(a)(3)(D)(i) of the INA, as a member of the Communist party, a detailed sworn statement should be taken. The areas which should be covered include: (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. Keep in mind that
of the Act provides an exception from the bar if the applicant was an involuntary member.
When an applicant reveals that he or she has a criminal conviction in Cuba, a sworn statement should be taken, and must address these matters: (1) the date and place of the arrest; (2) the specific charges lodged against him or her; (3) the date and place of any judicial proceedings; (4) the outcome of these proceedings; and (5) if the applicant was imprisoned, the place and length of incarceration. It is important to remember that a finding of inadmissibility need not be supported by a record of conviction
if there is reason to believe -by the alien's own admission- that there has been a conviction and that the underlying crime involved moral turpitude under prevailing U.S. standards. See
Matter of B-
, 3 I. & N. Dec. 1 (BIA 1947)
Matter of McNaughton
, 16 I. & N. Dec. 569 (BIA 1978)
Matter of Doural
18 I. & N. Dec. 37 (BIA 1981)
An applicant under the CAA who is inadmissible to the U.S. must seek a waiver under section 212(g), (h), or (i) of the Act. The waiver application is made on Form I-601,
on Form I-602. The I-602 may only be filed by an applicant who is a refugee or asylee who was admitted under section 207 or section 208 of the Act. The only exception is an alien who was paroled into the U.S. as a refugee
April 1, 1980.
With the exception of rollback provisions discussed in paragraphs (2) and (3), the general procedures for approval of an adjustment application set forth in
apply. The class of admission codes pertaining to CAA cases are:
CU-6: Adjustment class for natives and nationals of Cuba adjusting under the Act.
CU-7: Adjustment class for non-Cuban spouses and children adjusting under the Act.
General Rollback Provisions
When adjudicating an I-485 under section 245 of the INA, the date of admission for lawful permanent residence is the date on which the case is completed, i.e., when the I-181 is signed off. This is not the case with an application under the CAA. When an I-485 is to be approved for a Cuban applicant, the alien's admission for permanent residence is thirty months prior to the filing of his or her application, or the date of his or her last arrival in the U.S., whichever date is later. Consider these examples:
A Cuban national is paroled into the U.S. on March 1, 1986. On June 3, 1992, he files an I-485. When his application for adjustment is approved, his date of admission for permanent residence will be December 3, 1989. In this case, the applicant can be granted rollback of a full thirty months, as he was paroled into the U.S. over thirty months before filing for adjustment.
A Cuban national is admitted to the U.S. as a nonimmigrant visitor for pleasure on January 10, 1990. On April 3, 1992, he files an I-485. When his application for adjustment is approved, his date of admission for permanent residence will be January 10, 1990. In this case, rollback of thirty months is impermissible, as the date of adjustment would precede the applicant's entry into the U.S.
The non-Cuban spouse and children of a qualifying Cuban applicant are entitled to the same rollback provisions as the principal alien. However, their rollback date can not precede the date of the qualifying marriage. Although this rule has been adopted as a matter of policy, it has no basis in statute or regulation. Rather, it is an application of the general principle that a benefit can not accrue to an alien before eligibility exists.
Special Rollback Provisions Pertaining to “Mariel” Entrants
Between April 1, 1980 and October 10, 1980, approximately 125,000 Cuban nationals were paroled into the U.S. as a part of what is commonly referred to as the "Mariel boatlift." These aliens were given I-94s bearing the designation "Cuban-Haitian Entrant." A Mariel entrant is eligible to apply for the benefits of the CAA, and will generally receive thirty months of rollback as described above. However, a Mariel entrant who filed his or her application for adjustment of status before February 1, 1987, should
be granted "rollback" to his initial parole date in 1980.
A denial of an application under the CAA should be prepared on an I-290C, and certified to the Office of Administrative Appeals (AAO), when the applicant is in a lawful status or when deportation proceedings should not be instituted because of humanitarian factors. However, an I-485 which is denied for lack of prosecution should not be certified to the AAO.
As with any other lawful permanent resident, an alien adjusted under section 1 of the CAA may have his or her residence rescinded under section 246 of the Act if it is determined within five years of adjustment that he or she was ineligible. Moreover, the five-year period of statutory limitations begins to run from the actual date the application for adjustment was approved, and not from the retroactive date of permanent residence (the rollback date).
Matter of Carrillo-Gutierrez
, 16 I. & N. Dec. 429 (BIA 1977)