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State Letter #07-14

Cuban Parolee and non-Cuban Spouse or non-Cuban Child: Spouse and Child Not Eligible for ORR Benefits and Services

Published: October 19, 2007
Categories:
Cuban Haitian
Types:
State Letter
Tags:
eligibility

TO: STATE REFUGEE COORDINATORS
NATIONAL VOLUNTARY AGENCIES
OTHER INTERESTED PARTIES

FROM: Brent Orrell
Acting Director
Office of Refugee Resettlement

SUBJECT: Cuban Parolee and non-Cuban Spouse or non-Cuban Child: Spouse and Child Not Eligible for ORR Benefits and Services

In response to the U.S. Department of Homeland Security Cuban Medical Professional Program[1], Cuban medical professionals and their spouses and children have begun arriving in the United States and some are applying for ORR benefits and services.  Many of the spouses and children are non-Cuban, that is, are nationals or citizens of a country other than Cuba.  These non-Cuban spouses and children do not meet the definition of a “Cuban and Haitian entrant” as defined in the Refugee Education Assistance Act of 1980 (REAA), Pub. L. No. 96-422, because they are not Cubans and, therefore, unless they have another status qualifying them for ORR assistance, they are not eligible for ORR benefits and services.  Although the impetus for this State Letter is the rise in applications for ORR benefits and services from increasing arrivals of Cuban medical professionals and their non-Cuban spouses and non-Cuban children, the eligibility rules discussed here apply equally to the non-Cuban spouses and non-Cuban children of Cuban and Haitian entrants who are not medical professionals.

Background
The Cuban Adjustment Act (CAA)

In some cases, a Cuban family paroled into the U.S. may include a spouse or child who was not born in Cuba, or who is a citizen of a country other than Cuba.  The fact of the spouse’s or child’s birth outside Cuba, or citizenship in a country other than Cuba, has no disqualifying impact on the spouse or child’s status as a parolee and eligibility to adjust status to lawful permanent resident under the Cuban Adjustment Act (CAA), Pub. L. No. 89-732, after one year in the U.S.  However, during the one year period prior to CAA adjustment, the non-Cuban parolee spouse or child is not eligible for ORR benefits and services.  Even after one year and upon adjustment of status, the non-Cuban spouse or non-Cuban child remain ineligible for ORR benefits and services, unless he or she is somehow able to qualify for ORR assistance on other grounds.

The CAA states that, “notwithstanding the provisions of section 245(c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1, 1959, and has been physically present in the United States for at least one year, may be adjusted by the [Secretary of Homeland Security or the] Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.”

The Immigration and Nationality Act (INA) defines "child" so that a person's son or daughter must be unmarried and not yet 21 years of age to qualify as that person's "child." Step-children, adopted children, and children born out of wedlock can qualify as "children" for purposes of CAA adjustment, if the claimed parent-child relationship meets the requirements specified in section 101(b)(1) of the INA.

The CAA applies to the spouse and children of the alien regardless of their country of citizenship or place of birth, provided:

  • the relationship continues to exist until the dependent spouse or child adjusts status;
  • they are residing with the principal alien in the United States;
  • they make an application for adjustment of status under the CAA;
  • they are eligible to receive an immigrant visa; and
  • they are otherwise admissible to the United States for such permanent residence.

The CAA states that "the provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such alien in the United States."   Regardless of the country in which a child of Cuban citizen parolee(s) or Cuban national parolee is born, such a child who meets the INA definition of “child” will be eligible to adjust his or her status under the CAA to that of Lawful Permanent Resident when the Cuban parent(s) apply for adjustment.

Cuban and Haitian Entrants and Eligibility Requirements for ORR Benefits and Services

Employing the definition in the REAA, ORR defines a Cuban and Haitian entrant as:

(a) Any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided; and

(b) Any other national of Cuba or Haiti

(1) Who:

(i) Was paroled into the United States and has not acquired any other status under the Immigration and Nationality Act;

(ii) Is the subject of exclusion or deportation proceedings under the Immigration and Nationality Act; or

(iii) Has an application for asylum pending with the Immigration and Naturalization Service; and

(2) With respect to whom a final, nonappealable, and legally enforceable order of deportation or exclusion has not been entered.

45 CFR § 401.2

ORR State Letter # 00-17 “Status and Documentation Requirements for the Refugee Resettlement Program” dated September 14, 2000, describes the immigration statuses that qualify an individual to be eligible for Refugee Resettlement Program Benefits, and identifies the immigration documentation that an applicant for ORR assistance or benefits must present to prove the applicant holds one of those statuses.  This ORR State letter does not modify ORR State Letter #00-17.

The following is found in ORR State Letter # 00-17:

Individuals with the following statuses are eligible for Refugee Resettlement Program benefits (45 CFR §400.43(a)(1)-(6)):

  1. Individuals paroled as refugees or asylees under §212(d)(5) of the Immigration and Nationality Act (INA)
  2. Refugees admitted under §207 of the INA
  3. Asylees whose status was granted under §208 of the INA
  4. Cuban and Haitian entrants, in accordance with the requirements in 45 CFR §401.2
    a. Any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided
    b. A national of Cuba or Haiti who was paroled into the United States and has not acquired any other status under the INA and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion has not been entered
    c. A national of Cuba or Haiti who is the subject of removal, deportation or exclusion proceedings under the INA and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion has not been entered
    d. A national of Cuba or Haiti who has an application for asylum pending with the INS and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion has not been entered

Nationality or Citizenship of Non-Cuban Spouse or Non-Cuban Child Determined by DHS Based on Immigration or Citizenship Documentation Presented

DHS determines the citizenship or nationality of an alien by the documentation presented to DHS at time of application for entry to the U.S.  A person claiming to be a national or citizen of Cuba would need to produce documentation issued by the Government of Cuba as evidence of this claim for DHS to treat the alien as Cuban and to enter the alien into DHS records as a national or citizen of Cuba.  In the case of a national of Cuba accompanied by, for example, a spouse who presents to DHS a passport from Mexico or from Venezuela, DHS will consider the Cuban to be Cuban, the Mexican to be Mexican, and the Venezuelan to be Venezuelan.  DHS will not consider an alien with a non-Cuban passport to be a Cuban national or citizen, solely because he or she is accompanied by a Cuban national spouse.  Similarly, the nationality or citizenship of children is determined by DHS based on the documentation presented to DHS as evidence of the childrens’ nationality or citizenship.  A child born in Mexico or Venezuela to parents one or both of whom are Cuban, may well carry a Mexican or Venezuelan passport, and be considered as Mexican or Venezuelan by DHS.  For the children to be considered Cuban nationals, they would need to present documents to that effect issued by the Government of Cuba.

Even if born outside of Cuba, the spouse or child of a Cuban parolee may have a claim to Cuban citizenship if qualifying criteria are met and stipulated Cuban procedures followed.  For example, an individual who was born outside Cuba, but who had at least one Cuban citizen parent, may have acquired Cuban citizenship at birth under the jus sanguinis principle.  If the spouse or child born outside of Cuba can present a Cuban passport, or other properly authenticated document from the Cuban government indicating that spouse or child is a Cuban citizen, then the person will be considered a Cuban for REAA purposes (even if the person is also a citizen of another country).   

Unless such a claim to Cuban citizenship or nationality has been successfully pursued and documented by the spouse or child, they continue to be non-Cuban under the REAA.   An unarticulated claim to Cuban citizenship confers no right, privilege, or status under the REAA on the spouse or child for purposes of their U.S. immigration status including at time of entry to the U.S., and does not lead to eligibility for ORR benefits and services.

Cuban Adjustment Act Cannot Confer On Non-Cuban Spouse or Non-Cuban Child Status of Cuban Entrant Including Cuban Parolee Status

It is true that the CAA permits the non-Cuban spouse or non-Cuban child of a Cuban parolee to adjust status to lawful permanent resident.   During this first year in the U.S. in parole status, the non-Cuban spouse and non-Cuban child are running the one year clock along with the Cuban spouse for eligibility to apply for lawful permanent resident status under the CAA, which they can achieve if other requirements are met.  But the CAA cannot confer on the non-Cuban spouse, or on the non-Cuban child, the status of Cuban parolee, even though all family members qualify to adjust under the CAA.  During this initial year in the U.S., the immigration status of the non-Cuban spouse and non-Cuban child is the status originally conferred on them by DHS/Customs and Border Protection at time of the entry to the U.S. based on the documentation of citizenship or nationality then presented to DHS and basis of application for admission or parole to the U.S.  The CAA cannot retroactively or prospectively confer on the non-Cuban spouse or child the status of Cuban Haitian entrant.  The evidence of lawful permanent resident status is the Form I-551 (“green card”), which may include a code indicating the section of law under which the bearer adjusted status, in this case CU7, family member of Cuban citizen or national adjusting under the CAA.

Cuban and Haitian Entrant is not a Derivative Status

Nowhere in the definition of Cuban and Haitian Entrant is there mention of spouse or child of the Cuban and Haitian Entrant, nor is there reference to any authority for devolution of “derivative” Cuban and Haitian Entrant status upon the non-Cuban spouse or non-Cuban child of a Cuban and Haitian Entrant.

Only a citizen or national of Cuba could become a Cuban Entrant, including Cuban parolee.  A person not a citizen or national of Cuba could never by definition be or become a Cuban Entrant or Cuban parolee.

Non-Cuban Spouse or Non-Cuban Child of Cuban Parolee Are Ineligible for ORR Benefits and Services

Because the non-Cuban spouse or non-Cuban child of a Cuban parolee is by definition not a Cuban parolee, he or she cannot be eligible for ORR funded benefits and services as Cuban parolees.  This is not to exclude their potential ORR eligibility under some other ORR category, such as Asylee or Victim of a Severe Form of Trafficking in Persons, categories not discussed in this State Letter.

As a general rule, ORR Service Providers should not look behind DHS nationality or citizenship determinations of applicants for ORR benefits and services.  If the DHS documentation presented by an applicant for ORR services, or the Systematic Alien Verification for Entitlements (SAVE) system identifies the applicant as a national of a country other than Cuba, but the applicant for ORR services claims to be Cuban, he/she may be referred to the Cuban Interest Section in Washington, D.C. to seek documentation.  (see appendix for contact information.)  If the applicant claims that he or she should have been admitted or paroled by DHS into the U.S. as a Cuban, the applicant should be referred to DHS.

Appendix
Cuban Adjustment Act

Pub. L. 89-732, Nov 2, 1966, 80 Stat. 1161, as amended by Pub. L. 94-571, Sec. 8, Oct. 20, 1976, 90 Stat. 2706; Pub. L. 96-212. Title II. Sec. 203 (i) Mar. 17, 1980, 94 Stat. 108 (8 U.S.C.A. § 1255 note):

(provided) “That, notwithstanding the provisions of section 245 (c) of the Immigration and Nationality Act, the status of any alien who is a native or citizen of Cuba and who has been inspected and admitted or paroled into the United States subsequent to January 1st, 1959 and has been physically present in the United States for at least one year, may be adjusted by the [Secretary of Homeland Security or the] Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if the alien makes an application for such adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence.

Upon approval of such an application for adjustment of status, the [Secretary of Homeland Security] shall create a record of the alien’s admission for permanent residence as for a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, whichever date is later. The provisions of this Act shall be applicable to the spouse and child of any alien described in this subsection, regardless of their citizenship and place of birth, who are residing with such an alien in the United States.

Sec. 2. In the case of any alien described in section 1 of this Act who prior to the effective date thereof (Nov. 2, 1966) has been lawfully admitted into the United Sates for permanent residence, the [Secretary of Homeland Security] shall, upon application, record his admission for permanent residence as of the date the alien originally arrived in the United States as a nonimmigrant or as a parolee, or a date thirty months prior to the date of enactment of this Act (Nov 2, 1966), whichever date is later.

Sec. 3. Section 13 of the Act entitled “An Act to amend the Immigration and Nationality Act, and for other purposes”, approved October 3, 1965 (Public Law 89-236) (amending subsecs. (b) and (c) of this section) is amended by adding at the end thereof the following new subsection:

“(c) Nothing contained in subsection (b) of this section (amending subsec. (c) of this section) shall be construed to affect the validity of any application for adjustment under section 245 (this section) filed with the Attorney General prior to December 1st, 1965, which would have been valid on that date; but as to all such applications the statutes or parts of statutes repealed or amended by this Act (Pub. L. 89-236) are, unless otherwise specifically provided therein, continued in force and effect”.

Sec. 4. Except as otherwise specifically provided in this Act, the definitions contained in section 101 (a) and (b) of the Immigration and Nationality Act (Section 1101 (a), (b) of this title) shall apply in the administration of this Act. Nothing contained in this Act shall be held to repeal, amend, alter, modify, affect, or restrict the powers, duties, functions, or authority of the [Secretary of Homeland Security or the] Attorney General in the administration and enforcement of the Immigration and Nationality Act (this chapter) or any other law relating to immigration, nationality or naturalization.

Sec. 5. The approval of an application for adjustment of status to that of lawful permanent resident of the United States pursuant to the provisions of section 1 of this Act shall not require the Secretary of State to reduce the number of visas authorized to be issued in any class in the case of any alien who is physically present in the United States on or before the effective date of the Immigration and Nationality Act Amendments of 1976 (See Effective date of 1976 Amendment Note Above)

Section 204 (b) (1) ( c) of Pub. L. 96-212 provided that the amendment of section 1 of Pub. L. 89- 732, set out above, by Pub. L. 96- 212 is effective immediately before Apr. 1, 1980.

April 19, 1999

INS Policy on Cuban Adjustment

Memorandum For All Regional Directors
All District Directors
All Chief Patrol Agents
All Officers-In-Charge

From: Doris Meissner
Commissioner

Subject: Eligibility for Permanent Residence Under the Cuban Adjustment Act Despite having Arrived Other than a Designated Port-of-Entry

This memorandum sets forth the Immigration and Naturalization Service (Service) policy concerning the effect of an alien's having arrived in the United States at a place other than a designated port of entry on the alien's eligibility for adjustment of status under the Cuban Adjustment Act of 1966 (CAA), 8 U.S.C. § 1255, note. This issue arises because many CAA applicants, in fact, arrive in the United States in an irregular manner. Section 1 of the CAA, however, requires that they must be "admissible." CAA § 1, 8 U.S.C. § 1255, note. If the inadmissibility ground that is based on an alien's having arrived at a place other than a port-of-entry, the Immigration and Nationality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), applies to CAA applicants, then many aliens who were formerly eligible for adjustment of status will no longer be eligible.

The policy of the Service is that the inadmissibility ground that is based on an alien's having arrived at a place other than a port-of-entry does not apply to CAA applicants. All Service officers adjudicating CAA applications will do so in accordance with this policy. So long as the applicant meets all other CAA eligibility requirements, it is contrary to this policy to find the alien ineligible for CAA adjustment on the basis of the alien's having arrived in the United States at a place other than a designated port-of-entry.

The Service will incorporate this policy into Service regulations as promptly as possible. The policy is, however, effective immediately. Service officers are not to await the publication of the intended rule before deciding CAA applications in accordance with this policy.

This policy is based on the rationale of the decision in Matter of Mesa, 12 I&N Dec. 432 (INS 1967). In Matter of Mesa, the Service held that the admissibility requirement of § 1 of the CAA must be construed generously, in order to give full effect to the purpose of the CAA. The decision noted that Congress was fully aware that many, and perhaps most, Cuban nationals were dependent on some forms of public assistance. Yet the purpose of the CAA would have been defeated, if the public charge ground of inadmissibility applied to these applicants. The Service concluded, therefore, that the public charge ground does not apply to CAA applicants. Id.

I have concluded that the same reasoning applies to inadmissibility for having arrived at a place other than a designated port-of-entry. Aliens arriving in this manner have been eligible for CAA adjustment for many years. Congress recently reaffirmed the availability of this adjustment provision, by enacting that the CAA is to continue in force until there is a democratic government in Cuba. Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), Pub. L. No. 104-208, Division C. § 606(a), 110 Stat. 3009-546, 3009-695. Section 212(a)(6)(A)(i) of the INA was designed to complement the new legal doctrine, enacted as part of IIRAIRA, under which aliens who come into the United States without inspection are inadmissible, rather than deportable, aliens. Compare INA §§ 212(a)(6)(A)(i) and 235(a)(1), 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1225(a)(1) with 8 U.S.C. § 1241(a)(1)(B)(1994). Nothing in the legislative history of these changes suggests that Congress also intended to make aliens who arrive in the United States away from ports-of-entry ineligible for CAA adjustment.

This policy does not relieve the applicant of the obligation to meet all other eligibility requirements. In particular, CAA adjustment is available only to applicants who have been "inspected and admitted or paroled into the United States." CAA § 1, 8 U.S.C. § 1255, note. The authority to parole an applicant for admission, of course, is set forth in § 212(d)(5) of the INA, 8 U.S.C. § 1182(d)(5), with § 236 of the INA, 8 U.S.C. § 1226, providing additional authority concerning the conditions the Service may place on the alien's parole. An alien who is present without inspection, therefore, would not be eligible for CAA adjustment unless the alien first surrendered himself or herself into Service custody and the Service released the alien from custody pending a final determination of his or her admissibility.

Service officers will not deny parole to an alien whose parole would be consistent with Service parole regulations and policy, solely in order to preclude CAA eligibility. Nor does this policy require the parole of any alien whose parole would not be consistent with Service parole regulations and policy, merely because paroling the alien would open the path to CAA adjustment. In the absence of a disqualifying criminal record or other factors that would bar CAA adjustment, however, the on-going difficulty in actually removing aliens to Cuba and the availability of CAA adjustment should ordinarily weigh heavily in favor of a grant of parole.

The Service may properly consider the avoidance of detention costs with respect to an alien whose actual removal is unlikely as a factor in determining, as a matter of discretion, that parole would yield a "significant public benefit." INA § 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). In similar fashion, the Service may properly consider the availability of CAA adjustment as a factor in determining, as a matter of discretion, that an "urgent humanitarian reason" justifies a grant of parole. Id. If the Service paroles the alien, he or she will be eligible to apply for employment authorization. 8 C.F.R. § 274a.12(c)(12).

The Service is also aware that, because of the CAA eligibility requirements, the parole will be for at least 1-year, so that the alien will be a "qualified alien" for purposes of eligibility for Federal means-tested public benefits. 8 U.S.C. § 1641(b)(4). The alien will also be a "Cuban-Haitian entrant" for purposes of the Refugee Education Assistance Act of 1980, as amended. 8 C.F.R. § 212.5(g). Service officers will not consider these two factors as "adverse factors" in determining whether to grant or deny parole.

(remainder of memo not relevant to this ORR State Letter)

Office of Field Operations Customs and Border Protection Memo of 08/08/2006

August 8, 2006

                                                                   OFO: ARMC PM

MEMORANDUM FOR:  DIRECTORS, FIELD OPERATIONS

                                      DIRECTOR, PRECLEARANCE

                                     

FROM:                              Executive Director

Admissibility Requirements and Migration Control 

                                      Office of Field Operations

 

SUBJECT:                          Proper Completion of Form I-94, Arrival/Departure Record, for Cuban Parolees

 

The Office of Field Operations is forwarding information for mandatory discussion during musters.  The information provided in the attached document should be disseminated to all ports of entry for inclusion in muster discussions held during the week of August 14, 2006.   The June 10, 2005 Memorandum, entitled, Treatment of Cuban Asylum Seekers at Land Border Ports of Entry, directed ports of entry to place Cuban asylum seekers into 240 proceedings.  The purpose of the attached muster is to provide further guidance regarding the I-94 notations for these cases. 

Currently, ports of entry are using various notations.  The lack of a standard Customs and Border Protection notation for Cuban parolees, has caused confusion for other Federal, state, and local agencies, which come in contact with Cuban parolees.  To standardize Cuban parolee Forms I-94, CBP Officers are instructed to write the following legend after the word “Purpose” in the parole stamp on the Form I-94:  “Cuban Parolee (CC); pending 240 hearing.”  Please ensure that the attached Muster Topic is discussed at daily musters during the week of August 14, 2006.

If you have any questions regarding this muster topic, please contact Maureen Dugan, Admissibility Requirements and Migration Control, at (202) 344-2784.

Paul M. Morris /s/

Attachment


Office of Field Operations Customs and Border Protection Muster Memo of 08/14/2006

 

Date:                               August 14, 2006

 

Topic:                              Cuban Parolees and Arrival/Departure Record, Form I-94

 

Reference Materials:           Section 212(d)(5) of the INA; Inspector’s Field Manual, Chapters 16 and 17

 

Office:                             Office of Field Operations,

Admissibility Requirements and Migration Control

This muster is to remind all CBP Officers to properly complete the Arrival/Departure Record, Form I-94, for Cuban parolees who are put into section 240 hearing proceedings.  

The CBP Officer’s processing of the Arrival/Departure Record, Form I-94, and other documents encountered during processing is a critical part of the CBP’s system of records and for outside entities, including other Federal, state and local agencies, which come into contact with Cuban parolees. 

After stamping the Arrival/Departure Record, Form I-94, with the parole stamp, the CBP Officer should legibly write the following legend after the word “Purpose” on the Form I-94:  “Cuban Parolee (CC); pending 240 hearing.”  The “CC” part of the notation is the two-letter designation for Cuban parolees.  This notation is crucial for other entities to ascertain that the bearer of the document is a Cuban parolee and entitled to certain benefits, including benefits given by Citizenship and Immigration Services (CIS) and Health and Human Services (HHS).  See the Inspector’s Field Manual (IFM) Chapters 16 and 17 for additional Cuban processing requirements.

Extract from ORR State Letter # 00-17 (note that references to the INS should be read to refer to USCIS or the appropriate other DHS component pursuant to the transfer of all INS responsibilities to DHS effective March 1, 2003)

Chart #4a

  1. Acceptable documents for Cuban and Haitian entrants, in accordance with the requirements in 45 CFR §401.2:
    a.  Any individual granted parole status as a Cuban/Haitian Entrant (Status Pending) or granted any other special status* subsequently established under the immigration laws for nationals of Cuba or Haiti, regardless of the status of the individual at the time assistance or services are provided

Documents/Codes

  • An I-94 Arrival/departure card with a stamp showing parole at any time as a "Cuban/Haitian Entrant (Status Pending)" - I-94 may refer to §212(d)(5).
  • CH6 adjustment code on the I-551 - Even after a Cuban/Haitian Entrant (Status Pending) becomes a permanent resident, he/she technically retains the status Cuban/Haitian Entrant (Status Pending).
  • An I-94 Arrival/departure card with a stamp showing parole into the U.S. on or after April 21, 1980 - I-94 may refer to §212(d)(5).
  • A Cuban or Haitian passport with a §212(d)(5) stamp dated after October 10, 1980.

*Note: ORR is not interpreting the phrase, "any other special status subsequently established under the immigration laws for nationals of Cuba or Haiti" to refer to lawful permanent residence obtained under the Nicaraguan Adjustment and Central American Relief Act (NACARA) or the Haitian Refugee Immigration Fairness Act (HRIFA). Although NACARA and HRIFA offer a special opportunity for nationals of Cuba and Haiti, the status conferred by these laws, lawful permanent residence, is not a "special status." Thus, if the person did not qualify as a Cuban and Haitian entrant, adjustment of status, regardless of the legal basis for the adjustment, does not make the person a Cuban and Haitian entrant.

Chart #4b

b.      A national of Cuba or Haiti who was paroled into the United States and has not acquired any other status under the INA and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion* has not been entered

Documents/Codes

  • An I-94 Arrival/departure card showing parole into the United States - I-94 may refer to §212(d)(5), humanitarian or public interest parole.**
  • I-766 Employment Authorization Document with the code A04
  • I-766 Employment Authorization Document with the code C11
  • I-688B Employment Authorization Document with the provision of law 274a.12(a)(4)*** - This is an older version of the employment authorization document but it is still in use. - This is an older version of the employment authorization document but it is still in use.
  • I-688B Employment Authorization Document with the provision of law 274a.12(c)(11)*** - This is an older version of the employment authorization document but it is still in use.

 

c.      *Note 1: The question of whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion is essentially a legal determination that cannot simply be made by reviewing any of the listed documents. Moreover, it is not a decision that can be easily made by eligibility workers in the regular course of eligibility determinations. ORR suggests that eligibility workers require a written declaration, under penalty of perjury, that the individual has a status that makes him/her eligible for ORR programs and attempt to use other methods to uncover this information, such as calling the EOIR case status line at (800) 898-7180, submitting Form G-845 to the local INS office, asking the applicant for more information or, if participating, accessing the INS SAVE system. Note that these methods may not be definitive. If an applicant appears eligible from the available information, the agency should provide benefits while conducting further investigation. If, after reviewing documents and attempting to determine whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion, an eligibility worker remains uncertain about an applicant’s eligibility, please call (Thomas Pabst) at (202) 401-5398.

d.      **Note 2: As treatment of Cuban and Haitian entrants has developed, INS officials, on occasion, may have used notations on the I-94s of Cuban and Haitian entrants that are not listed above. Eligibility workers may see various notations that convey parole. For example, eligibility workers, in the past, may have seen the notation, "EWI," which technically stands for "Entered Without Inspection" but was being used for individuals who were paroled. Please call (Thomas Pabst) at (202) 401-5398 if you encounter unusual notations or if you are uncertain of the relevance of a particular notation.

e.      ***Note 3: If an individual provides an I-688B Employment Authorization Document, which does not provide information about nationality, eligibility workers must request other documentation to confirm that the individual is a Cuban or Haitian national.

f.       Chart #4c

g.      A national of Cuba or Haiti who is the subject of removal, deportation or exclusion proceedings* under the INA and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion** has not been entered

Documents / Codes
 

  • INS Form I-221 - Order to Show Cause and Notice of Hearing
  • INS Form I-862 - Notice to Appear
  • INS Form I-220A - Order of Release on Recognizance
  • INS Form I-122 - Notice to Applicant Detained for a Hearing Before an Immigration Judge
  • INS Form I-221S - Order to Show Cause, Notice of Hearing and Warrant for Arrest
  • Copy of INS Form I-589 date stamped by the Executive Office for Immigration Review (EOIR) - Application for Asylum and Withholding of Removal; Individual is subject of removal, deportation or exclusion proceedings.
  • Copy of INS Form I-485 date stamped by EOIR - Application to Register Permanent Residence or to Adjust Status; Individual is subject of removal, exclusion or deportation proceedings.
  • EOIR-26 - Notice of Appeal, date stamped by the Office of the Immigration Judge 
  • I-766 Employment Authorization Document with the code C10 - Application for suspension of deportation/cancellation of removal submitted
  • I-688B Employment Authorization Document with the provision of law 274a.12(c)(10)*** - Application for suspension of deportation/cancellation of removal submitted
  • Other applications for relief that have been date stamped by EOIR
  • Other documentation pertaining to an applicant’s removal, exclusion or deportation proceedings - Example: a notice of a hearing date before an Immigration Judge

h.      *Note 1: Although the above documents show that proceedings have been initiated in a case, they cannot confirm that proceedings are continuing. In order to confirm that proceedings are continuing, eligibility workers will need to use other methods, such as calling the EOIR case status line at (800) 898-7180, submitting Form G-845 to the local INS office or, if participating, accessing the INS SAVE system. If an eligibility worker cannot determine whether proceedings are ongoing, please call (Thomas Pabst) at (202) 401-5398.

i.        **Note 2: The question of whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion is essentially a legal determination that cannot simply be made by reviewing any of the listed documents. Moreover, it is not a decision that can be easily made by eligibility workers in the regular course of eligibility determinations. ORR suggests that eligibility workers require a written declaration, under penalty of perjury, that the individual has a status that makes him/her eligible for ORR programs and attempt to use other methods to uncover this information, such as calling the EOIR case status line at (800) 898-7180, submitting Form G-845 to the local INS office, asking the applicant for more information or, if participating, accessing the INS SAVE system. Note that these methods may not be definitive. If an applicant appears eligible from the available information, the agency should provide benefits while conducting further investigation. If, after reviewing documents and attempting to determine whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion, an eligibility worker remains uncertain about an applicant’s eligibility, please call (Thomas Pabst) at (202) 401-5398.

j.        ***Note 3: If an individual provides an I-688B Employment Authorization Document, which does not provide information about nationality, eligibility workers must request other documentation to confirm that the individual is a Cuban or Haitian national.

k.      Chart #4d

l.        A national of Cuba or Haiti who has an application for asylum pending with the Immigration and Naturalization Service and with respect to whom a final, nonappealable, and legally enforceable order of removal, deportation or exclusion* has not been entered

Documents/Codes
Comments

INS receipt for filing Form I-589
Application for Asylum and Withholding of Removal

I-766 Employment Authorization document with the code C08
 

I-688B Employment Authorization Document with the provision of law 274a.12(c)(8)**
This is an older version of the employment authorization document but it is still in use.

*Note 1: The question of whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion is essentially a legal determination that cannot simply be made by reviewing any of the listed documents. Moreover, it is not a decision that can be easily made by eligibility workers in the regular course of eligibility determinations. ORR suggests that eligibility workers require a written declaration, under penalty of perjury, that the individual has a status that makes him/her eligible for ORR programs and attempt to use other methods to uncover this information, such as calling the EOIR case status line at (800) 898-7180, submitting Form G-845 to the local INS office, asking the applicant for more information or, if participating, accessing the INS SAVE system. Note that these methods may not be definitive. If an applicant appears eligible from the available information, the agency should provide benefits while conducting further investigation. If, after reviewing documents and attempting to determine whether there is a final, nonappealable, legally enforceable order of removal, deportation or exclusion, an eligibility worker remains uncertain about an applicant’s eligibility, please call (Thomas Pabst) at (202) 401-5398.

**Note 2: If an individual provides an I-688B Employment Authorization Document, which does not provide information about nationality, eligibility workers must request other documentation to confirm that the individual is a Cuban or Haitian national.

Contact Information Cuba Interests Section in U.S.
2630 and 2639 16th Street, NW, Washington DC 20009

Telephone: (202) 797-8518
Fax: (202) 986-7283
E-mail: cubaseccion@igc.apc.org

For additional information see ORR State Letter #00-17 and ORR State Letter #01-22.

If you have questions about this ORR State Letter, please call Thomas S. Pabst at (202) 401-5398.

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[1] On August 11, 2006 DHS announced a program that allows certain Cuban medical professionals located outside Cuba to apply for parole or asylum into the U.S.  To qualify for parole under this program, applicants must have evidence of their Cuban nationality or citizenship, must be working as a medical professional in a third country under the direction of the Cuban government, and must be otherwise admissible to the U.S.  The applicant must be identified by DHS as a medical professional, which is a doctor, physical therapist, lab technician, nurse, sports trainer or other in the medical field.  Spouses and minor children of Cuban medical professionals may also qualify for a parole, whether they are physically present in a third county or if they stayed behind in Cuba.  Spouses and children under 21 qualify regardless of citizenship, and are paroled into the U.S. as parolees of their country of nationality based on documentation presented at time of application and entry to the U.S.