Massachusetts Immigration Lawyer Blog

Deportation Defense Tips for Boston Immigration Court

Yesterday I went to Boston District Office of U.S. Citizenship and Immigration Services (USCIS) for a green card interview for an immigration client from Cuba who filed his I-485 so that he could get a green card under the Cuban Adjustment Act. Today, I'd like to share some insights I've gained into how to prepare an adjustment of status application under the Cuban Adjustment Act.

First, the basics: To get a green card under the Cuban Adjustment Act, you must show that:

• you are a Cuban national, the best evidence of which is valid Cuban passport;
  
• you were inspected and admitted or paroled into the U.S. after January 1, 1959; and
  
• you have been physically present in the U.S. for at least one year before apply for your green card.

To apply for a green card, you must submit an I-485, G-325A, 2 passport photos, Form I-693 medical report and proof of physical presence. And in addition to these required items, you must also submit:

• Form I-643, Health and Human Services Statistical Data Sheet. This form is available on the USCIS website; and
• A clearance from the local police jurisdiction for any area in the U.S. where you have lived for six months or longer since your 14th birthday.

These last two requirements aren't listed on the USCIS website. And you won't find these requirements in the I-485 instructions. You will only find them in the USCIS Field Adjudicators Manual, which is hidden on the USCIS website. You won't get your green card until you provide USCIS with all of these required items. And if you go to your adjustment of status interview without them, USCIS will issue an I-72, Request for Evidence, and the approval of your I-485 could be delayed, sometimes significantly.

One final tip: you can ONLY apply for adjustment of status under the Cuban Adjustment Act with USCIS. You can't file your I-485 in Immigration Court. And an Immigration Judge has no jurisdiction to grant this form of relief.

If you have more questions about the Cuban Adjustment Act or how to get a green card, please call me at 617-722-0005. As an immigration lawyer in Boston, I'd be happy to advise you on your immigration options.

A recent decision by the Board of Immigration Appeals changes the immigration process for Cubans seeking permanent residency in the United States. Pursuant to the Cuban Refugee Adjustment Act of 1966, Cuban nationals who appear at U.S. border posts seeking admission are generally paroled into the United States as "Cuban asylees." After entry into the U.S., Cubans can immediately apply for work permits. Then, one year after living in the U.S., Cuban nationals can file I-485 applications to adjust their status to obtain their green cards.

Although Cubans who are paroled into the U.S. have a clear path to permanent residency (getting a green card), they are placed into the deportation proceedings and, therefore, must appear before an Immigration Judge in Immigration Court.

Until recently, Immigration Judges had jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans, and Cubans would apply for their green cards through Immigration Court and before an Immigration Judge. The Court then could grant their green card and simultaneously take them out of removal proceedings.

But now, according to the Board of immigration Appeals in Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009), Immigration Judges have no jurisdiction over adjustment of status applications (I-485 or green card applications) filed by Cubans who have been paroled into the U.S. under the Cuban Refugee Act. Instead, to obtain green cards, Cuban parolees must file their I-485 with U.S. Citizenship and Immigration Services ("USCIS").

This Board of Immigration Appeals decision puts Cuban parolees in an odd situation: they must appear in Immigration Court, yet Immigration Court has no jurisdiction over the adjustment of status applications that they are eligible to file. If you are a Cuban national who is in removal proceedings, your most likely option is that your lawyer will ask the Immigration Judge to continue your case until USCIS adjudicates your I-485. The problem is that it could easily take two years for USCIS to make a decision on the I-485!

To me, this new scenario for Cuban asylees makes no sense. It clogs the docket and wastes the Immigration Court's limited resources. 

If you have questions about the deportation process, Cuban adjustment, other immigration issues, or if you are seeking an attorney to represent you in Boston Immigration Court, call my Boston office at (617) 722-0005 to set up an immigration consultation.