• Adjustment of Status for Natives and Citizens of Cuba
  • October 20, 2015 | Author: Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office
  • U.S. immigration law contains special rules for natives and citizens of Cuba to adjust to lawful permanent resident (LPR) status in the United States. Generally, so long as a native or citizen of Cuba is admitted or paroled into the United States, he or she will be eligible for adjustment of status after accruing one year of physical presence after admission or parole. Under most circumstances, the same rules apply to the spouses or unmarried children of Cuban natives and citizens; regardless of whether the immediate family member is a native or citizen of Cuba. Suffice it to say, these special rules are designed to make it easy for Cuban natives and citizens to expeditiously apply for adjustment of immigration status. However, even with these special rules, there are still eligibility requirements that applicants must meet in order to adjust status.

    Other Rules for Eligibility to Adjust for Cuban Natives and Citizens:
    • Pursuant to regulations found in 8 C.F.R. § 245.2(a)(4)(iii), temporary absences in the 1-year period from admission or parole will not render a Cuban ineligible for adjustment of status, provided that there was no intention on the part of the Cuban of abandoning residence in the United States, and that the Cuban was admitted or paroled into the United States upon return.
    • Cubans must be admissible to the United States in order to adjust status, and consequently must obtain a waiver of any grounds of inadmissibility in order for an adjustment application to be successful. However, Cubans applying for this special rule adjustment of status are exempt from the public charge ground of inadmissibility [this ground if inadmissibility is for when the Attorney General determines that an alien is likely to require certain means-tested public benefits for support]. Furthermore, inadmissibility stemming from arriving at a place other than an open port of entry will not preclude adjustment of status provided that the applicant was paroled into the United States.
    • In the event that a Cuban enters without inspection, he or she will require a grant of parole in order to be eligible for adjustment of status. In this scenario, the Cuban should consult with an experienced immigration attorney for an evaluation of his or her situation.
    Rules for Spouses and Children of Cuban Natives or Citizens:
    • If the immediate relative of a Cuban native or citizen is also a Cuban native or citizen, then he or she will be eligible for the special adjustment of status rules independent of the Cuban spouse or parent.
    If the immediate relative is not a Cuban native or citizen, he or she may apply for adjustment of status under the same rules as Cuban natives and citizens provided that the following conditions are satisfied:
    • The family relationship must exist until the immediate relative obtains LPR status. The immediate relative must be residing with the Cuban at the time he or she applies for adjustment of status and throughout its adjudication [note: except for special provisions for battered spouses and children, or widows, under the Violence Against Women Act (VAWA)].
    • There is no requirement that the family relationship predates the Cuban’s admission or parole or acquisition of LPR status, only that it exists at the time that the immediate family member applies for adjustment of status.
    • Children of Cuban natives or citizens must be unmarried and under 21 years of age.
    • It is important to remember that the immediate family member is ineligible to apply for adjustment of status before the Cuban native or citizen does [expect for certain VAWA cases], and that the immediate relative will be ineligible for the special adjustment of status rules once the Cuban native or citizen is naturalized. The period in which an immediate relative may apply for adjustment of status is from when the Cuban native or citizen applies to before he or she is naturalized.
    Applying for Adjustment of Status

    United States Citizenship and Immigration Services (USCIS) provides a list of forms and evidence required for Cubans applying for this special adjustment of status:
    • Form I-485, Application to Register Permanent Residence or Adjust Status [this is the form for adjustment of status applications];
    • Copy of birth certificate (or other birth record with translation, if available);
    • Applicable filing fees;
    • Form G-325A, Biographic Information [for applicants between 14 and 79 years of age];
    • Form I-693, Report of Medical Examination and Vaccination Record;
    • Form I-94, Arrival/Departure Record [or other evidence of inspection and admission or parole into the United States]
    • Evidence of 1 year’s physical presence in the United States.
    In the event that the applicant has a ground of inadmissibility that he or she must obtain a waiver for in order to adjust status, the applicant must file:
    • Form I-601, Application for Waiver of Grounds of Inadmissibility [in the vast majority of cases]; or
    • Form I-602, Application by Refugee for Waiver of Grounds of Excludability [if the applicant was admitted as a refugee or asylee under INA §§ 207 or 208, or if the applicant was paroled into the United States as a refugee before April 1, 1980] (AFM 23.11(l)).
    Cubans applying for adjustment of status are well advised to consult with an experienced immigration attorney when filing the forms for adjustment. Even in cases where the applicant seems to be patently eligible, it would be easy to make a simple filing mistake or not provide sufficient evidence in the application. An experienced immigration attorney will help ensure that the entire process is done completely and correctly.

    In order to be approved under the special adjustment of status rules for Cubans, the applicant must include evidence demonstrating that Cuban nationality or citizenship, and proof of at least one year’s of physical presence since admission or parole. Scenarios in which the applicant requires waivers of inadmissibility will be more complicated, especially depending on the ground of inadmissibility. Immediate relatives will require evidence of their relationship to a qualifying relative, and evidence that they reside with the qualifying relative [except in certain VAWA cases] in order to be eligible for the special adjustment of status provisions.