After arriving in the United States, thousands of Cuban migrants face new legal hurdles

Thousands of Cubans are arriving in the United States every month in one of the largest migrations from the island in decades, but a sometimes overlooked policy change during the Obama era is making it harder and more expensive for many of them to obtain legal immigration status.

In the final days of the Obama administration, White House and Department of Homeland Security officials defended the elimination of a special parole policy known as “wet foot, dry foot” (which allowed Cubans who reached land to remain, while sending back those stopped at sea) as a response to increasing migration from Cuba, a way to “equalize” immigration policies and ensure that young Cubans who could be agents of change remained in the country.

At the time, Cuban migrants at the U.S.-Mexico border who got an immigration parole — a document good for one year or longer — were entitled to apply for work permits and could easily file for permanent residence under the Cuban Adjustment Act. The 1966 law allows Cubans who have been “inspected and admitted or paroled into the United States” to apply for a green card after living in the country for at least one year.

Six years later, another Democratic administration is facing an even larger migration crisis, as more than 177,000 Cubans have fled the island for the United States since October, federal data show. The U.S. Coast Guard has stopped another 5,000 at sea and returned them to Cuba.

And despite past promises by Cuban authorities, the United States still lacks a way to deport thousands of Cuban nationals to the island, especially when they arrive at the U.S.-Mexico border. This has forced Biden administration officials to implement a kind of de facto wet-foot, dry-foot policy: Most people stopped at sea are returned to the island, while those arriving at the border or making landfall in South Florida are allowed in, with the understanding they can claim asylum.

But absent the automatic parole policy that was in place before it was changed by the Obama administration, many Cuban migrants can no longer count on a relatively easy way to settle in the United States.

Problems begin at the border, where agents have broad discretion on what documentation to give arriving Cuban migrants. Most get one of two documents:

▪ Parole. That is a document issued by the Department of Homeland Security to certain foreigners who arrive without a visa but who are applying for admission to enter and remain in the country. Cuban migrants who have been paroled into the U.S. can obtain a Social Security number and work permit and can apply for permanent residence after one year under the Cuban Adjustment Act. Many refugees and asylum seekers receive this document.

▪ Form I-220A. That’s also known as an “Order of Release on Recognizance,” issued by Immigration and Customs Enforcement when migrants are going to undergo removal proceedings at a later date. The document orders their release provided that they comply with being monitored (sometimes with an ankle bracelet or phone app), do not break the law and appear at immigration court hearings. Migrants receiving this release form cannot work and face difficulties trying to apply for permanent residence under the Cuban Adjustment Act.

Both documents should contain the person’s identification number for immigration matters, known as the alien number or A-number.

But some Cuban migrants are living a worst-case scenario, like the one experienced by a 36-year-old Cuban telecommunications engineer and his family, who surrendered to Border Patrol agents at the international bridge in Del Río, Texas, in June last year. He thought he and his family were lucky because they were processed and released in just two hours. But he later realized the release document did not contain the crucial A-number.

“They released me with a document that says that I have been released under the condition that I report to an ICE office in my final destination within 60 days, and they didn’t even give me an alien number or anything. And that has been my biggest problem here in this country,” said the engineer, who asked not to be identified because he fears criticizing immigration authorities while still in legal limbo.

At every turn, he faced the consequences of an overwhelmed immigration system.

He, his wife and his two children showed up at the Immigration and Customs Enforcement office in Miramar, as the documents ordered. However, they were turned away and told to request an appointment online. That appointment was set for eight months later, in January 2022.

Worried about his situation, he sought the help of a lawyer at a charity organization. But the lawyer said there was little he could do until that first interview with ICE officials. On the day of that interview, ICE officials told him they had made a mistake with his appointment date and rescheduled it for 2024.

“I have been more than one year here and I have never seen an immigration official,” the engineer said.

His family did not receive refugee resettlement benefits for several months because of the lack of proper documents. And he still cannot legally work, although he, like many other Cuban migrants, is working without papers.

Because the engineer doesn’t have the alien number nor a document proving he had been “inspected and admitted or paroled into the United States,” he hasn’t been able to apply for permanent residence under the Cuban Adjustment Act, despite having been in the United States for more than a year.

With the advice of a lawyer, he finally applied for asylum and is still waiting to get a work permit.

Obstacles to getting a green card

While extreme, his case is not unique. According to interviews with immigration lawyers and Cubans who arrived in the past year, Cuban migrants find it more challenging to navigate the immigration system because many do not receive parole documents when they are processed at the border. Instead, ICE officials issue most of them Form I-220A.

Asked what the protocol is for processing Cubans who arrive at the border or make landfall after a sea voyage, a U.S. Customs and Border Protection spokesperson said border officials have broad discretion to make decisions “case by case.” The official said that arriving Cuban migrants could be put under different programs, resulting in “many different outcomes.”

“It is very confusing and seems to change every week,” said David Claros, the manager of Church World Services’ South Florida legal team, which provides low-cost legal advice to Cubans and other migrants.

Claros said Form I-220A has been particularly problematic for Cuban migrants because some immigration judges do not consider the document as proof they were “inspected and admitted or paroled into the United States,” effectively barring them from obtaining a green card under the Cuban Adjustment Act.

In February, U.S. Citizenship and Immigration Services acknowledged the problem and published a directive allowing Cuban migrants to reapply for permanent residence if their initial applications were denied because they didn’t have a parole document. But the measure will only benefit Cubans who entered the country between Jan. 12, 2017, and Nov. 17, 2021, and does little for the majority of Cubans coming in the latest exodus, who Claros said do not fall into the “arriving non-citizen” or “arriving alien” category because they have neither visa nor parole.

If the “arriving alien” box is not checkmarked in the documents, the migrants are barred from filing for permanent residence under the Cuban Adjustment Act with Citizenship and Immigration Services, and can only do so in court, Claros said.

“In court, there is no consensus” on whether the I-220A can be considered parole or not, he said. “We have judges in Miami and other places that accept it as a parole, but a lot of them don’t.”

Claros said the issue is currently under litigation but, in the meantime, advises Cuban migrants who do not have parole documents to seek legal advice.

“There is no clear answer to this, so it is highly advisable to seek legal counsel because so many things can be different,” with each case, Claros said.

That, in turn, has put an extra burden on already vulnerable Cuban migrants. Many sold their possessions in Cuba to pay for expensive flights to Central America and the long trek to the border, while others borrowed money from family members or friends who paid for the journey.

Organizations like Church World Services also do not have the capacity nor the funds to provide legal help to so many clients.

A Cuban couple from Mayabeque, a province near Havana, who crossed the border last year unsuccessfully tried to get an appointment at the Church World Services’ Doral office for two months. They ended up paying $5,000 to a lawyer who took their case. They, too, had received I-220A forms and have applied for asylum, hoping to get a work permit soon. They also plan to apply for permanent residence under the Cuban Adjustment Act.

The couple is working for minimum wage selling fruits and vegetables in Miami.

“We have to pay rent, bills,” the man, who asked not to be identified, said. “And we were lucky the lawyer offered us a monthly payment plan.”

But some unscrupulous lawyers are also trying to take advantage of recent arrivals’ poor understanding of the immigration system.

The Cuban telecommunications engineer was asked for $25,000 by a lawyer he found online.

He declined, but he said the experience left him more “pessimistic.”

“In Cuba, you always have the hope of entering [the United States] and leaving with parole at the border,” he said. “But if that dream comes true, it depends a lot on luck. I feel the system doesn’t want me here.”