Cuban immigrants, who have enjoyed U.S. privileges for decades, are now receiving the same treatment as other immigrants under new policies established by the Trump administration.
The Homeland Security Department’s rule on public charge grounds for inadmissibility can especially impact some Cubans, although others covered by the Cuban Adjustment Act remain exempt from the new rule, which has generated much confusion within the exile community.
To clarify the topic, el Nuevo Herald interviewed Angel Leal, an experienced Miami immigration attorney.
What does the public charge rules changes?
▪ The new rule broadens the definition of who can be considered a public charge. It used to be a person primarily dependent on public assistance. But now it is a person who is more likely than not to receive certain public benefits for more than 12 months, in the aggregate, within any 36-month period.
▪ It expanded the number of assistance programs that indicate a public charge, from four to nine. The additions include public housing programs, including Plan 8, food stamps and versions of Medicaid that include federal financing.
▪ Factors such as age and employment are now taken into account. Before, an affidavit of support by the petitioner was enough to show that the immigrant was not likely to become a public charge.
▪ Includes a little-used clause that allows U.S. immigration officials to ask for a Public Charge Bond if they consider that the immigrant can become a public charge. The minimum bond is $8,100.
Which Cuban immigrants will and will not be affected?
Cuban natives who obtain legal permanent residence under the Cuban Adjustment Act one year and one day after arriving in the United States are not affected.
Cubans who may be impacted are those who arrive under the Cuban Family Reunification Parole Program, because that process requires an Affidavit of Support, a legal contract in which the person who requested the reunification promises to financially assist the arriving relative. That bars the use of some public benefits.
In other words, any Cuban who is waiting for family reunification and is required to submit to a consular interview will be affected.
Cubans who enter with tourist visas or under ESTA system
Many Cubans arrive with visitor visas – B-1 for business and B-2 for tourism. Others, like those who have Spanish passports, arrive under the Electronic System for Travel Authorization (ESTA). They wait a year and a day and then apply for a green card under the Cuban Adjustment Act.
Their applications for adjustment do not require an affidavit of support, but authorities can investigate whether their visas should have been denied at the time of application because of the public charge ground of inadmissibility.
That’s why it’s important for visitors, specially at the beginning of their stays, to conduct themselves according to their visas and avoid any government assistance that could be considered as immigration fraud, since they obtained visas as self-supporting visitors and wound up receiving government assistance.
Cuban migrants who arrived under parole
Parole is a humanitarian way of entering the United States that amounts to a temporary admission. The government generally issues Cubans with parole a provisional work permit while they wait a permanent status.
Few Cubans have been receiving parole since the Obama administration ended the so-called “wet foot, dry foot” policy in 2017.
However, those who enter under parole are eligible for certain forms of government assistance in the nature of refugee help, and therefore the public charge rule generally does not apply in those cases.
Citizenship applicants who may have been inadmissible aliens
Although the new rule does not affect applications for U.S. citizenship, officials have the power to review whether an immigrant was inadmissible under the concept of public charge at the time the foreigner became a permanent resident.
There’s no question that many Cubans who are permanent residents should worry when they apply for citizenship, if they have received public assistance and are subject to the public charge ground of inadmissibility.
That’s one of the most dangerous aspects of the new public charge rule — that immigration officials considering a naturalization application will be able to investigate the start of the residence process to determine whether the applicant was admissible and not a public charge.
If an immigrant arrived under the Cuban Family Reunification Program, submitted an affidavit support and became a resident, that person should not have access to government assistance.
We have to investigate that, first to determine whether the person entered with an affidavit of support at the time; second to determine if the person requested public assistance; and third to verify whether the assistance received falls under the definition of public charge.
It is recommended that interested persons request a copy of their immigration files under the Freedom of Information Act (FOIA), to gather the information so we can recommend whether the immigrant should or should not apply for citizenship. The last thing we want is to risk the permanent resident status with a citizenship application that should not have been filed.
Can Cubans who ask for asylum use the Cuban Adjustment Act?
Generally no. Those who turn up at the southern border are allowed to enter from Mexico for one day at a time to attend their court hearings, but not for one year and one day.
And those held in U.S. detention centers are now being released after posting bond or under orders of supervision, which is not the same as being released under parole.
However, those who qualify because they were issued parole and have been in the United States for one year and one day, and have an asylum application pending in an immigration court, should continue to appear at their immigration court hearings regardless of whether they qualify under the Cuban Adjustment Act.
How to prove Cuban citizenship
That’s a legal issue that has changed a lot, especially for the children of Cubans who were born outside the island and want to apply for residency under the Cuban Adjustment Act.
U.S. immigration officials last year issued a memorandum describing the criteria for establishing whether a person is a Cuban citizen. In short, they have to have a Cuban passport or a certificate of Cuban citizenship or nationality recorded in the Civil Registry in Havana.
The authorities no longer accept a certificate from a Cuban consulate in another country documenting that the person was born abroad to Cuban parents. Cubans cannot use it to apply for residence under the Adjustment Act
Before the foreign-born children of Cubans apply for adjustment, they should first make sure they have these documents.
Watch the entire interview about Cuban immigrants affected by the public charge rule, in Spanish: here:
Daniel Shoer Roth is a journalist covering immigration law who does not offer legal advice or individual assistance to applicants. Follow him on Twitter @DanielShoerRoth or Instagram. The contents of this story do not constitute legal advice.
Read more about legal and immigration issues in Spanish at AccesoMiami.com