Good news came from USCIS yesterday, February 23, 2022, for certain Cubans who have previously applied for adjustment of status under the Cuban Adjustment Act (CAA) to become permanent residents and were denied.
The CAA provides a special path for nationals of Cuba to apply for adjustment of status and receive the green card. The major requirements are that the applicants must have been lawfully admitted or paroled into the United States and remained in the United States for at least one year before applying. Most applicants qualified for adjustment of status under the CAA by entering with a visitor or work visa, or more commonly, on a visa waiver program using a passport from a country of their second citizenship, such as Spain or Italy.
On the flip side, many Cubans have arrived in the United States without any proper documents, by coming to the southern border from Mexico and requesting asylum at the port of entry, by crossing the US-Mexican border unlawfully, or by crossing the sea to Florida. If such individuals were caught by the Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE) officials, they would be processed into the immigration system to appear in court. After a brief detention, most often those individuals were released into the United States on an Order of Release on Recognizance (Form I-220A) or on a DHS Bond under Section 236 of the Immigration and Nationality Act (INA).
Such individuals were not eligible for adjustment of status under the CAA because USCIS did not consider such a release as a parole. Therefore, those Cubans could not meet the requirement of having been admitted or paroled. However, USCIS has recently changed its stance on this issue and has now taken the position that a Cuban national who is released from DHS custody on an Order of Release on Recognizance, or a DHS Bond has been paroled.
In light of this change, USCIS released a Notice for Certain Natives or Citizens of Cuba Who Are “Arriving Aliens” and Who Were Denied Adjustment of Status Under the Cuban Adjustment Act Based Solely on a Determination That They Had Not Met Their Burden of Establishing That They Had Been Admitted or Paroled” on February 23, 2022.
The notice instructs natives and citizens of Cuba who:
- meet the definition of an “arriving alien” under 8 CFR §1.2; and
- were, prior to the entry of a removal order under INA Section 240, initially released by the Department of Homeland Security (DHS) from DHS custody into the United States under INA §236 (for example, with a Form I-220A, Order of Release on Recognizance, or on a DHS Bond under INA §236) between January 12, 2017 and November 17, 2021; and
- have not departed the United States since this initial release by DHS from DHS custody; and
- applied for adjustment of status under the Cuban Adjustment Act (CAA) by filing a Form I-485, Application to Register Permanent Residence or Adjust Status (Form I-485) with USCIS; and
- USCIS denied that Form I-485 based solely on a determination that they did not meet the burden of establishing that they had been admitted or paroled as required for adjustment of status under the CAA.
That they can now either:
- File a new Form I-485 with USCIS, with fee, or with a Form I-912, Request for a Fee Waiver (Form I-912), if eligible; or
- File a timely Form I-290B, Notice of Appeal or Motion (Form I-290B) with USCIS, with fee, or with a Form I-912, if eligible. If a timely Form I-290B is filed and the above criteria are met, USCIS will reopen and re-adjudicate the previously denied Form I-485.
Additionally, if the deadline for filing a timely Form I-290B has passed, they may file an untimely Form
I-290B, with fee, or with a Form I-912, if eligible, until February 22, 2023. If an untimely Form I-290B is
filed within one year from the date of the notice and the above criteria are met, USCIS will reopen and re-adjudicate the previously denied Form I-485.