United States: End Of Immigration Privileges For Cuban Nationals Signals Changes In U.S.-Cuba Relationship

Tara L. Vance and Neal N. Beaton are partners in our New York office and Liliana V. Farfan is an Associate in our Washington, D.C., office.

HIGHLIGHTS:

  • Before leaving office, former President Barack Obama put an end to the "wet-foot, dry-foot" policy, a special parole policy unique to Cuban nationals arriving to the United States without visas that allowed them to obtain permanent residency (i.e., green card status) after being in the U.S. for one year. As a result, Cuban nationals who attempt to illegally enter the U.S. are now subject to the same migration procedures and standards applicable to nationals of other countries.
  • The Cuban Medical Professional Parole Program that allowed Cuban doctors and nurses to apply for parole at any U.S. embassy has also been terminated.
  • Cuban nationals also are no longer exempt from expedited removal proceedings that authorize removal without a hearing before an immigration judge of certain aliens who are in, or arrive to, the U.S. without valid documents for admission or entry.

Before former President Barack Obama left office, one of his last acts was to repeal the policy granting asylum to every Cuban national who made it to the United States. As part of the normalization of formal diplomatic relations with Cuba, Obama announced on Jan. 12, 2017, the end of the so-called "wet-foot, dry-foot" policy, a change that came just one week before President Donald Trump took office.

The wet-foot, dry-foot policy was a special parole policy unique to Cuban nationals arriving to the U.S. without visas. It allowed such nationals to adjust their statuses to that of lawful permanent residents after being in the U.S. for one year. Due to the policy change, Cuban nationals are now treated like all other foreign nationals attempting to enter the U.S. without visas.

The termination of the Cuban Medical Professional Parole Program was announced at the same time as the repeal of the wet-foot, dry-foot policy. This program permitted Cuban medical personnel to be granted asylum at any U.S. embassy or consulate worldwide. The U.S. Department of Homeland Security (DHS) and the U.S. Department of Justice released Federal Register notices on Jan. 17, 2017, amending these regulations to conform to the policy changes. The new regulations eliminate the categorical exceptions that barred expedited removal proceedings of Cuban nationals who arrived in the U.S.

In exchange, Cuba has agreed to accept thousands of Cuban nationals who previously came to the U.S. under the wet-foot, dry-foot policy, but ultimately were denied the ability to remain in the U.S. This most often occurred because the Cuban nationals were deemed to have criminal records.

These actions were described by former Secretary of Homeland Security Jeh Johnson as "part of the ongoing normalization of relations between the governments of the United States and Cuba" and as advancing the goal of putting U.S. relations with Cuba "on equal terms" to U.S. relations with other countries.

Background

The wet-foot, dry-foot policy, established on Sept. 9, 1994, under the Clinton Administration, was the result of an immigration understanding between the U.S. and Cuba known as the Joint Communiqué. The migration agreement provided that Cuban migrants rescued at sea attempting to enter the U.S. (wet foot) would not be permitted to enter the U.S. and would be returned to Cuba or taken to another country. Only Cubans who reached U.S. soil (dry foot) were entitled to the protection of the 1966 Cuban Adjustment Act (CAA). The CAA gives the attorney general the discretion to grant permanent residency (i.e., green card status) to Cuban nationals who have been physically present in the U.S. for one year, irrespective of their visa statuses, as long as they have been inspected and admitted or paroled into the country – a privilege created for Cubans alone due to the U.S. interest in stopping communism and the consequent lack of U.S. diplomatic relations with Cuba.

On Aug. 11, 2006, the Bush Administration instituted the Cuban Medical Professional Parole Program (Medical Parole Program). To carry out the Medical Parole Program, DHS exercised its discretionary authority, granted by the Immigration and Nationality Act, to parole Cuban medical professionals into the U.S. The program allowed Cuban healthcare providers, sent by the Castro regime to work or study in other countries, to apply for parole at any U.S. embassy, consulate or U.S. immigration office worldwide. Their spouses and/or unmarried children were also eligible for parole. The program is said to have created a "brain drain" of the Cuban healthcare system and was viewed by the Cuban government as a "reprehensible practice" designed to deny Cuba and other countries "vital human resources." The program also deprived the Cuban government of the income raised by those healthcare professionals deployed overseas. Cuban medical professionals were sent to various countries by the Cuban government in exchange for payments by those governments. The arrangements were controversial because the healthcare workers received only a fraction of the payments made to the Cuban government.

On Dec. 17, 2014, Obama announced that the U.S. would re-establish diplomatic relations with Cuba, along with the easing of certain economic sanctions and removal of certain limitations on travel, commerce, financial transactions and the free flow of information. The official re-establishment of full diplomatic relations between the U.S. and Cuba took place on July 20, 2015, with the opening of embassies in both countries. Since then, the two countries have resumed direct mail service and commercial flights.

Repatriation of Cubans and Current Implications

The U.S. and Cuba also signed a joint statement on Jan. 12, 2017, by which Cuba agreed to the repatriation of Cuban nationals who attempt to enter or remain in the U.S. irregularly after the date of the joint statement. Cuba also agreed to take back some Cuban nationals who came to the U.S. via the Port of Mariel in 1980 and faced deportation from the U.S. The joint statement did not address the hundreds of U.S. fugitives who have fled to Cuba after indictment and even after conviction.

The termination of the special immigration privileges for Cuban nationals have the following implications:

  • Cuban nationals who attempt to illegally enter the U.S. are now subject to the same migration procedures and standards applicable to nationals of other countries. Cuban nationals who attempt to enter or remain in the U.S. illegally are subject to removal, consistent with U.S. law and enforcement priorities.
  • The U.S. no longer accepts parole applications under the Medical Parole Program at U.S. embassies and consulates. Any request for parole is treated in the same manner as parole requests filed by nationals of other countries. Cuban medical personnel may apply for asylum, consistent with the procedures for all foreign nationals.
  • Effective Jan. 13, 2017, Cuban nationals are no longer exempt from expedited removal proceedings, which authorize removal without a hearing before an immigration judge of certain aliens who are in, or arrive to, the U.S. without valid documents for admission or entry.
  • The Cuban Family Reunification Parole Program, which allows beneficiaries of approved family-sponsored immigrant visas to travel to the U.S. before their visas become available, remains in place.
  • Cuban nationals already paroled into the U.S. are not affected by the change.
  • The U.S. maintains its commitment of ensuring legal migration from Cuba with a minimum of 20,000 Cubans each year.

Future Implications

Although improved relations between the U.S. and Cuba are expected to increase travel and business between the two countries, Trump's position on these policies is unclear. The changes to Cuban policy made by the Obama Administration were made through executive order, which could be reversed by the current president. However, amendment or repeal of the CAA and other Cuban-related laws that remain in effect will ultimately require approval by the U.S. Congress.

Trump has stated that, in exchange for the easing of restrictions, Cuba should be providing the U.S. with more concessions. Although he referred to human rights issues, he has not specifically enumerated what he means by his statement. It remains to be seen what direction Trump will take in relation to Cuba and how that direction will affect immigration policy toward Cuban nationals.

Attorneys on Holland & Knight's Immigration, Nationality and Consular Team and Cuba Action Team, as well as members of our Public Policy & Regulation Group, can assist you with your immigration needs involving Cuba.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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