Due Process and the Cuban Adjustment Act

Citizenship and the Trump Administration – “Time to File”

By Leslie I. Snyder and Lee H. Snyder

President Elect Donald Trump’s campaign rhetoric opposing most immigration and the relatively “simple” qualifying test (“wet foot dry foot” on US ground, etc.) should compel Cubans to file their applications for residence in the United States.

Potential applicants may include long term residents, individuals with previously denied cases, and those who entered the U.S. recently; extending not only those individuals who were born in Cuba, but also those who are married to Cuban nationals, are children of a Cuban parent, or even those have been arrested and convicted; in every effort to take advantage of the favorable laws currently in effect for Cuban nationals and current avenues of procedural due process through the administrative bodies and courts of the U.S.

The Trump Administration could decide to immediately repeal the “Cuban Adjustment Act”. Once the Act is repealed, either by Executive Order or otherwise, Cubans will no longer have the option to file for residence under this provision, and they could even face deportation and removal from the United States. Also, the immigration filing fees for all applications are scheduled to increase in less than one month — on December 23, 2016.  For example, currently an application for Cuban Adjustment on Form I-485 (official government website found at www.uscis.gov) costs $ 1070 to file including the employment authorization document fees. After the fee increase, the filing costs for this application will be  $ 1,225.

The first step to becoming a U.S. citizen is to file for and become a lawful permanent resident of the U.S.  In general, most residents other than Cuban nationals must wait 57 months to file for naturalization, after which time processing could take about 6 months for an interview. On the other hand, since the Cuban Adjustment Act was enacted, Cubans have had the added advantage of the “rollback provision” which has allowed Cuban residence to receive ‘roll back treatment” providing an accelerated path  to citizenship, as their effective date of “adjustment” to permanent residence can be deemed to be the day that they first arrived or were paroled into the U.S.  under Section 1 of the Cuban Adjustment Act, 80 Stat. at 1161, which provides, in pertinent part, as follows:

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 two years, may be adjusted by 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 Attorney General shall create a record of the alien’s admission for permanent residence as of a date thirty months prior to the filing of such an application or the date of his last arrival into the United States, which ever date is later.

See Matter of Raul Carillo, 25 I&N Dec. 99 (BIA 2009) Interim Decision #3658

Lawful permanent residents under this provision of law can apply for citizenship under the “rollback” provision, as it is likely that this  avenue of lawful immigration for Cubans could be terminated by the new administration. Pursuant to the Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161 (“Cuban Adjustment Act”). The Cuban Adjustment Act (CAA), Public Law 89-732, is a United States federal law enacted on November 2, 1966. Passed by the 89th United States Congress and signed into law by President Lyndon Johnson, the law applies to any native or citizen of Cuba who has been inspected and admitted or paroled into the United States after January 1, 1959 and has been physically present for at least one year; and is admissible to the United States as a permanent resident.

Will Cubans be stripped of due process by the new administration of the U.S.?  Only time will tell. In the meantime, time may be of the essence.

Beware of Immigration Scams!

When applying online for ANY immigration matter, you should always make sure that your application is being filled out at the official USCIS web site. There are more and more web sites purporting that they conduct legitimate immigration business, but a lot of them only mimic the USCIS pages, in order to coax users into believing they are paying the fees needed for their application, when in fact, they will pay the scammer and never have an application filed in the first place.
The only legitimate web address to e-file your immigration petition (highlighted in blue)

The only legitimate web address to e-file your immigration petition (highlighted in blue)

Avoid being a victim of this type of fraud by always checking the address of the web site where you are filing the application. Study the picture posted here with great attention. To date, this is the address (URL) where the online form filing with USCIS (eFile) is conducted. As a rule of thumb, do not attempt to file anything online without consulting with your attorney first!

Baby Boomers: The EB-5 Entrepreneur Visa as a U.S. Retirement Options for High Net Worth Foreigners

Overview of U.S. Retirement Options and Visa

Many countries offer retirement options to attract high net worth foreigners to their shores. At this time, contrary to popular belief, the United States does not formally offer a visa classification allowing foreigners to retire in the U.S. As a result of this misconception, many foreigners simply purchase homes in the U.S., mistakenly believing that owning a home allows permanent residence in the U.S. as is the case with many other countries. Instead, if an individual has a net worth of at least $ 1 million, he or she should first consider the option of investing in a Regional Center EB-5 Project in order to move the U.S. eventually as a lawful permanent resident prior to investing in personal real estate.

With regional center investment, the EB-5 program requires the principal investor to be a limited partner in a U.S. regional center and spend at least two years as a conditional permanent resident following initial approval. The investor is not required to “develop and direct” the business actively as with most investor visa applications. In conclusion, this can be a good option for an individual who has at least $ 500,000.00 to invest. An added perk is that immediate family members receive the same classification and can also reside permanently in the U.S.; live here, work here, attend public schools and universities– all very attractive options for many high net worth foreigners who can prove the lawful source of their investment funds.

Steps to investing in a regional center or becoming a resident of the U.S.

Proper investment planning must be followed well in advance of moving to the U.S. First, the appropriate tax and estate laws, treaties, currency restrictions and immigration regulations must be carefully consulted and analyzed by meeting with the appropriate professionals. Once concern is the processing time for the EB-5 program, currently taking more than a year once filed. Second, medical insurance should be purchased to cover a stay in the U.S., especially since social security benefits would not be available for at least five (5) years following approval of the visa. Third, real estate trends including foreclosure and growth rates, local schools, and crime statistics should be considered. Overall, the United States is considered a safe place to invest and reside for foreigners.

It may not be enough to simply purchase a home in the U.S.

If your intention in purchasing a “vacation home” in the U.S. is truly to vacation here, you may be still be able to do so using a non-immigrant classification such as a tourist visa, the “ESTA” program available to certain nationalities or even a student visa. However, as a cautionary note, these are temporary visas, not designed for use as retirement vehicles or for permanent residence as an immigrant to the United States!

On the other hand, permanent or immigrant visas resulting from approved EB-5 entrepreneur and certain business or family petitions would allow you to reside in the U.S. permanently as a immigrant or retiree. Taking one of these routes would ensure that you could successfully meet your family’s goal of remaining in the U.S. without forced interruptions such as required travel to your country of origin every 90 or 180 days, or more.

For example, although the ESTA system allows certain foreign nationals from 38 countries to travel to the United States temporarily for 90 days or less as a tourist or business visitor, these tourists can purchase homes and form corporations, but they generally must depart after 90 days and are not permitted to live in the U.S. permanently as they are considered “non-immigrants”.   Even so, future entries at the U.S. border could be compromised if an individual is suspected of living in the U.S. more than in his or her home country or if that non-immigrant no longer has a residence anywhere but in the U.S. Understanding the distinctions between non-immigrant and immigrant visas is critical to retirement planning.

Immigration Executive Order

CNN has reported that the President Obama’s Executive Order on Immigration might be signed as soon as late next week. This of course means that a previously unavailable pathway may soon open, allowing legalization (or semi-legalization), of millions of individuals who are presently without status.

While the details of the legalization program based on this executive order are still a matter of speculation, based on what is known so far, we anticipate that the president will take a two-pronged approach:

1) Deferred Action (possibly for individuals who spent 5 years in the U.S., have USC relatives, and no criminal record that would otherwise disqualify them); and

2) Enforcement Reforms.

It should be mentioned that it is also possible that instead of Deferred Action the president will move towards full legalization, akin to the “cancellation of removal” or similar process used in the past, though in the light of the current political climate, we believe action akin to Deferred Action is more likely.

Hopefully, we will all know more in the days or weeks to come.

In the meantime, Leslie I. Snyder P.A. will continue to follow the news on this important issue and be ready to assist  with these and other immigration matters.