Cuban Adjustment Act

Who can adjust under the Cuban Adjustment Act?

See the Special Adjustment Categories hub.

Principal Cuban eligibility requirements

A principal CAA applicant should establish each statutory element separately.

• Native or citizen of Cuba;
• Inspection and admission or parole after January 1, 1959;
• At least one year of physical presence in the United States;
• A properly filed adjustment application;
• Eligibility to receive an immigrant visa;
• Admissibility for lawful permanent residence; and
• Favorable discretion.

Native of Cuba and citizen of Cuba are alternative bases

The statute applies to a person who is either a native or citizen of Cuba.

Evidence can include:

• Cuban birth certificate;
• Cuban passport;
• Cuban identity documents;
• Certificate of citizenship or nationality;
• Consular records;
• Prior immigration records identifying Cuban birth or nationality; and
• Secondary evidence where primary civil records are unavailable.

A person born outside Cuba who acquired Cuban citizenship may therefore require different evidence from a person whose eligibility is based on Cuban birth.

The applicant must have been inspected and admitted or paroled

The Cuban Adjustment Act expressly requires inspection and admission or parole into the United States after January 1, 1959.

Potential qualifying records include:

• Form I-94 showing lawful admission;
• Form I-94 showing parole under INA §212(d)(5)(A);
• Passport admission stamp;
• CBP admission record;
• Humanitarian parole documentation;
• Advance parole entry records where legally sufficient; and
• Other DHS documentation establishing actual admission or parole.

See Inspection and Admission and Parole and Adjustment of Status.

I-220A conditional release is not CAA parole

The Board of Immigration Appeals addressed this issue in Matter of Cabrera-Fernandez, 28 I&N Dec. 747 (BIA 2023).

The Board held that conditional parole under INA §236(a)(2)(B) is legally different from immigration parole under INA §212(d)(5)(A).

Accordingly, a person who:

• Entered without inspection;
• Was detained by DHS;
• Was released from custody under INA §236(a); and
• Received Form I-220A

has not established the “inspected and admitted or paroled” requirement of the Cuban Adjustment Act merely because DHS used the word “parole” in describing conditional release from custody.

Release on recognizance is not admission or parole

Other releases from immigration custody also should not automatically be treated as CAA parole.

Examples can include:

• Release on recognizance;
• Release under Form I-220A;
• Bond release;
• Order of supervision;
• Release to a sponsor; and
• Other custody-management decisions.

The adjustment analysis should identify whether DHS actually granted parole under the immigration parole authority rather than infer parole merely from physical release from custody.

An actual INA §212(d)(5)(A) parole can satisfy the CAA

A Cuban applicant who has been actually paroled into the United States can satisfy the entry component of the CAA.

The evidence should identify:

• The date parole was granted;
• The statutory or DHS parole authority;
• Form I-94 classification or notation;
• The parole period;
• Any later termination or expiration; and
• The applicant's complete travel history.

A lawful admission can qualify even if the applicant later overstays

A Cuban applicant may satisfy the CAA entry requirement through a lawful nonimmigrant admission rather than parole.

Examples can include qualifying admission as:

• B-1/B-2 visitor;
• F-1 student;
• H nonimmigrant;
• L nonimmigrant;
• Another lawful nonimmigrant classification; or
• Another admission recognized under immigration law.

Later expiration or violation of that status does not erase the historical inspection and admission.

The CAA overrides the INA §245(c) adjustment bars

Section 1 of the Cuban Adjustment Act applies notwithstanding INA §245(c).

As a result, an otherwise eligible CAA applicant generally is not barred merely because of:

• Visa overstay;
• Failure to continuously maintain lawful status;
• Unlawful immigration status at filing;
• Unauthorized employment;
• Certain status violations; or
• Other adjustment restrictions contained in INA §245(c).

See Failure to Maintain Lawful Status and Unauthorized Employment and Adjustment of Status.

At least one year of physical presence is required

The principal CAA applicant must have been physically present in the United States for at least one year.

Unlike current USCIS policy for asylee adjustment, the CAA filing framework requires the one-year physical-presence requirement to be satisfied before the CAA application is properly filed.

Physical presence and the date of admission or parole are related but not identical

The CAA requires both:

• A qualifying inspection and admission or parole; and
• At least one year of physical presence in the United States.

An applicant should reconstruct:

• All U.S. arrival dates;
• All departures;
• The qualifying admission or parole event;
• Travel after the qualifying event; and
• The total period actually spent physically present in the United States.

International travel can therefore affect the date on which the one-year physical-presence requirement is completed.

Evidence of one year of physical presence

Useful evidence can include:

• Passport records;
• CBP travel history;
• Employment records;
• Tax records;
• Bank statements;
• Lease agreements;
• Utility bills;
• Medical records;
• School records;
• Insurance documents;
• Government correspondence;
• Driver license records; and
• Other dated evidence showing actual presence in the United States.

A complete travel chronology should accompany difficult cases involving substantial time abroad.

The applicant must be admissible

The CAA does not eliminate the general requirement that the applicant be admissible for permanent residence.

Potential grounds include:

• Health-related inadmissibility;
• Criminal inadmissibility;
• Controlled substance violations;
• Drug trafficking;
• Fraud or willful misrepresentation;
• False claims to U.S. citizenship;
• Alien smuggling;
• Prior removal;
• Unlawful presence after departure;
• Unlawful reentry;
• Security and terrorism grounds; and
• Other INA §212 grounds.

Fraudulent admission can satisfy inspection while creating inadmissibility

An applicant may have physically presented at a port of entry and been admitted after using false documentation or making a misrepresentation.

Such a case can involve two separate questions:

• Whether the applicant was inspected and admitted for CAA purposes; and
• Whether the method used to obtain admission creates inadmissibility under INA §212(a)(6)(C).

A qualifying waiver may be necessary if fraud or willful misrepresentation is established.

No family or employment immigrant petition is required for the Cuban principal

A qualifying Cuban principal applies directly under the Cuban Adjustment Act.

The applicant does not need:

• Form I-130;
• Form I-140;
• PERM labor certification;
• A priority date from a family petition; or
• A Visa Bulletin preference category.

The CAA itself supplies the immigrant adjustment basis.

No ordinary Visa Bulletin wait applies

A principal Cuban Adjustment Act applicant does not wait for a family- or employment-preference priority date to become current.

The timing instead depends primarily on:

• Qualifying Cuban nativity or citizenship;
• Inspection and admission or parole;
• One year of physical presence;
• Admissibility; and
• Favorable discretion.

CAA adjustment therefore differs substantially from the numerically limited preference categories described in the Visa Availability section.

Spouses and children can qualify even if they are not Cuban

The Cuban Adjustment Act extends benefits to the spouse and child of a qualifying Cuban principal regardless of the derivative's citizenship or place of birth.

A qualifying derivative may therefore be:

• A citizen of another country;
• Born outside Cuba;
• A spouse acquired after the principal's Cuban birth; or
• A qualifying child born outside Cuba.

The spouse or child must reside with the qualifying Cuban principal

Section 1 of the CAA extends derivative benefits to a spouse or child who is residing with the qualifying Cuban principal in the United States.

The adjustment filing should therefore document:

• The qualifying relationship;
• The Cuban principal's CAA eligibility or permanent residence history;
• Shared residence in the United States; and
• The derivative applicant's individual admissibility.

Evidence of residence can include leases, identification records, tax filings, school records, insurance, bank records, mail, and other household evidence.

The Cuban principal may already have adjusted

A spouse or child can potentially seek derivative CAA adjustment after the Cuban principal has already become a permanent resident.

The principal's record should establish that the principal:

• Qualified as the Cuban described by the statute;
• Met the admission or parole requirement;
• Met the physical-presence requirement; and
• Adjusted under the CAA or otherwise had the qualifying CAA history required for the derivative claim.

The derivative should not assume the principal's green card alone proves every historical CAA element if USCIS requests the underlying record.

Battered spouses and children receive special CAA protections

VAWA legislation amended the Cuban Adjustment Act to protect qualifying battered spouses and children.

Depending on the facts, special rules can preserve CAA eligibility even where:

• The applicant no longer resides with the abusive Cuban principal;
• The marriage ended within the statutory period;
• The Cuban principal died within the statutory period; or
• Other relationship changes would ordinarily defeat derivative eligibility.

The applicant generally must establish battery or extreme cruelty and satisfy the specific statutory requirements governing the VAWA-based CAA provision.

See VAWA Adjustment of Status.

Form I-864 is generally not required solely because of CAA adjustment

CAA adjustment is not based on an ordinary family-sponsored Form I-130 or employment petition.

Therefore, the applicant generally does not submit Form I-864 merely because permanent residence is sought under the Cuban Adjustment Act.

However, public-charge and financial-evidence questions should be reviewed under the law applicable to the individual applicant and the current Form I-485 instructions.

CAA permanent residence can be backdated

The Cuban Adjustment Act contains an unusual rule concerning the date permanent residence is recorded.

Upon approval, the applicant's permanent residence can be recorded as of:

• Thirty months before the filing date; or
• The date of the applicant's last arrival into the United States,

whichever date is later under the statute.

CAA adjustment is discretionary

Satisfying the basic statutory elements does not create an automatic right to permanent residence.

USCIS or the immigration judge may consider favorable and adverse factors.

Potential favorable factors include:

• Long residence in the United States;
• Family ties;
• Employment;
• Education;
• Community involvement;
• Rehabilitation;
• Medical or humanitarian needs;
• Tax compliance; and
• Other positive equities.

Adverse criminal or immigration conduct can affect discretion even if it does not create a statutory bar.

CAA adjustment in removal proceedings

Immigration judges can adjudicate qualifying Cuban Adjustment Act applications where jurisdiction lies with EOIR.

Important issues can include:

• Whether proceedings are pending;
• Whether the applicant is an arriving alien;
• Whether USCIS or the immigration judge has adjustment jurisdiction;
• Whether the applicant received actual parole or only conditional release;
• Matter of Cabrera-Fernandez;
• Prior removal orders;
• Inadmissibility; and
• Discretion.

See Problems, Denials & Jurisdiction.

Example: Cuban paroled at a port of entry

Example: Cuban released on I-220A after EWI

Example: lawful visitor overstay

Cuban Adjustment Act evidence checklist

• Cuban birth or citizenship evidence.
• Passport.
• Form I-94.
• Evidence of actual inspection and admission or INA §212(d)(5)(A) parole.
• Complete entry and travel history.
• At least one year of physical-presence evidence.
• Form I-485.
• Medical examination documentation.
• Certified criminal records where applicable.
• Evidence addressing fraud or misrepresentation where applicable.
• Prior removal and immigration-court records where applicable.
• Any required waiver application.
• Evidence supporting favorable discretion.
• Marriage and shared-residence evidence for a derivative spouse.
• Birth and shared-residence evidence for a derivative child.
• VAWA evidence for a battered CAA spouse or child where applicable.

Common Cuban Adjustment Act mistakes

Primary authorities

Related INA245.com guides

Frequently asked questions