TBA Law Blog

Posted by: Christy Gibson on Sep 8, 2015

By Dawn A. Garcia*

On August 14, 2015, Secretary of State John Kerry presided over a ceremony celebrating the resumption of diplomatic relations between the United States and Cuba and the reopening of the U.S. embassy in Havana. Relations between both countries are not fully normalized, and the embargo is still in place, but this marks a significant step towards a more complete engagement with Cuba.[i] There are many who applaud this normalization as a positive move, and many others who argue that the Castro regime is still politically repressive and should not be rewarded for continuing oppression.

Cuban Adjustment Act

In 1960, President Dwight D. Eisenhower declared that all Cubans were political refugees and in 1961 severed all relations between the United States and Cuba. In 1966, Congress passed the Cuban Adjustment Act (CAA) in attempt to legalize the status of over 100,000 Cubans, who were seeking refuge in the United States.

The CAA, however, did not create a refugee status for Cubans. Instead, it created a unique, extraordinary relief. It provides that all Cuban citizens or natives who have been admitted or paroled into the United States and who have been physically present for one year and a day are eligible to apply for adjustment of status to lawful permanent residence. There are no visa caps and no immigrant visa petition requirements. The public charge ground of inadmissibility does not apply. An unlawful entry does not bar adjustment as long as the applicant subsequently obtains parole.

Spouses and children (unmarried and under 21 years of age) are also eligible to adjust status under the CAA even if not Cuban as long as they reside with the Cuban applicant and are otherwise admissible.

Although the people fleeing Cuba were seeking protection from political oppression, and President Eisenhower declared them refugees, the CAA does not require the applicant to prove he or she meets the legal standard for refugee status found in Immigration and Nationality Act (INA) § 101(a)(42) or show he or she has a well-founded fear of persecution on account of a protected status pursuant to INA §§ 207 or 208. After the applicant has been granted lawful permanent resident status, he or she is free to travel back and forth from Cuba without risk of losing status.

Amended Law – “Wet foot/dry foot” Rule

In the early 1990s, the flow of Cuban migrants increased significantly, with more than 35,000 coming across the ocean by raft in 1994 alone. In 1995, the U.S. and Cuba negotiated an agreement in attempt to slow the migration. The U.S. law was amended and it became known as the “wet foot/dry foot” rule. If a Cuban was interdicted at sea, with “wet feet,” he or she would be repatriated to Cuba. If found in the U.S., with “dry feet,” he or she would be paroled into the United States. And one year and one day later, he or she would be able to apply for lawful permanent resident status.

The resumption of diplomatic relations has not altered the CAA and it remains in effect. On July 6, 2015, the Department of State issued a statement affirming the CAA and current migration policy.[ii] The embargo is also still in effect. Congressional approval will be required to end the embargo or to amend the CAA.

Future of CAA

While the CAA remains unchanged, the resumption of diplomatic relations may make it more difficult for arriving aliens to benefit from the CAA. In a recent article, Cyrus D. Mehta points out that under INA 235(b)(1)(F), arriving Cubans may now be subject to expedited removal rather than parole for purposes of adjustment under the CAA.[iii] Whether this concern becomes a reality remains to be seen in the coming months.

The Cuban government remains authoritarian and repressive, but allows for some limited political opposition within its single-party system. Even supporters of the continued embargo, such as U.S. Senator Marco Rubio, argue the CAA should be reviewed to address fraud and to discourage people from taking the dangerous journey. Opponents of the continuation of the CAA argue that many Cubans are now seeking economic relief rather than political relief. Further, they argue that it is illogical to grant automatic unqualified legal status to a person fleeing Cuba and not to a person fleeing other more violent, unstable, and repressive regimes.

The full effects of normalization of diplomatic relations between the U.S. and Cuba remain to be seen in the coming years. For now, the CAA and the “wet foot/dry foot” rule are still in place and still reflect the immigration policies of the U.S. It is likely that Congress soon will be called upon to determine whether the CAA should continue.

[i]“Fact Sheet: Re-Establishment of Diplomatic Relations with Cuba,” IIP Digital, U.S. Department of State, July 06, 2015, http://iipdigital.usembassy.gov/st/english/texttrans/2015/07/20150706316588.html#axzz3f8iehRdd


[iii]Cyrus D. Mehta, “Resumption of Diplomatic Relations with Cuba: How Does it Impact U.S. Immigration Law?” The Insightful Immigration Blog, July 6, 2015, http://blog.cyrusmehta.com/2015/07/resumption-of-diplomatic-relations-with.html.


*Dawn Garcia practices immigration law from her Franklin, Tennessee office. She is a graduate of Vanderbilt University School of Law. Dawn may be reached at (615) 595-7283 or dawn@dawngarcialaw.com.