Détente in Our Time: The Thaw in Cuban and U.S. Relations

 Posted on February 17, 2015 in Immigration

In recent months, a remarkable phenomenon has been taking shape. For the first time since 1961, there will soon be a United States diplomatic mission in Cuba, and a thawing of relations between the two countries. President Obama has sought to normalize diplomatic relations in the hope of accomplishing several domestic goals. While many are excited about this turn of events, it has many Cubans and those of Cuban descent worried: what will change, if anything, regarding immigration? Will cases in progress be halted or changed, with requirements for visas likely changing?

The Cuban Adjustment Act

Unlike most people who attempt to enter the United States, Cubans have been the beneficiaries of some specific legislation due to the situation in their home country. The Cuban Adjustment Act (CAA) is the most well-known, enacted in 1966 to ensure Cubans fleeing the Castro government had a safe haven.

The CAA states that any Cuban national or citizen who enters the U.S. (1) with inspection, (2) is physically present in the U.S. for more than one year, and (3) is otherwise admissible to the United States (that is, not having a criminal record or any other factor rendering one inadmissible) falls under the act. The CAA permits Cubans to apply for permanent residence after having been present in the country for one year, unlike other nationalities that must wait for processing—often a decade or more. The rules against being a public charge and entering at an official port of entry also do not apply to Cubans.

There is also what is referred to as the “Cuban lottery,” or Special Cuban Migration Program (SCMP). The Cuban lottery is available to all adults between the ages of 18 and 55 who live in Cuba, irrespective of their eligibility for other immigration options. The last registration period was in 1998, however, with no plans currently to hold another one.

The Reality on the Ground

Despite such marked upheaval likely to occur soon, if someone is already in the process of obtaining their visa or a grant of asylum, nothing is likely to change for them. Even people who have not yet begun the visa process may still be able to immigrate under the CAA and other assorted legislative acts meant to benefit Cubans. Congress is “not likely to alter” the CAA without serious concessions made by the Castro government in the name of transparency and human rights.

However, there is one wrinkle that might prove problematic for Cubans attempting entry into the U.S.: Section 235 of the Immigration & Nationality Act (8 USC §1225) lays out the requirements for expedited removal of those who do not have valid papers, but §235(b)(1)(F) expressly excludes nationals of “countries in the Western Hemisphere with whom the United States has no diplomatic relations.” The only country that fits that description currently is Cuba. In other words, though the CAA may remain in effect, it would no longer be possible for Cubans to simply show up at American ports of entry without documentation and not face expedited removal. They would have to enter with a valid visa and overstay in order to qualify under the CAA.

An Immigration Attorney Can Help You

Even if the opening of Cuba may be exciting for many, it can still cause issues and problems for others. If you or a loved one may have your circumstances change as a result of re-established diplomatic relations, you may need professional assistance. The Chicagoland immigration attorneys at Mevorah & Giglio Law Offices are experienced in the field, and happy to work with you. We work hard and keep our clients in the loop every step of the way. Contact us today to discuss your options.