AAO Decision in Cuban Adjustment Act Appeal
Posted Sep 24, 2000
From time to time in the MurthyBulletin, we report on cases of interest to our readers involving appeals to the INS Administrative Appeals Office (AAO, which was formerly called AAU). The AAO considers certain cases that were previously denied by the District Offices or INS Service Centers. On occasion we report on a successful appeal put forth by the Law Office of Sheela Murthy, while at other times we report on cases that we read about in the legal literature, such as the case below.
In a case decided on August 10, 2000, the AAO ruled that an applicant was eligible for Adjustment of Status to permanent residence under the Cuban Adjustment Act (CAA), despite having been admitted under the Visa Waiver Program (VWP). By way of background, the Visa Waiver enables citizens of certain countries, including most Western European countries, Australia, Japan and others, to visit the U.S. without obtaining tourist visas. Persons using the VWP are admitted for a 90-day period and are not allowed to extend their stay, change to another temporary status, or adjust status to permanent residence. The AAO found, however, that this prohibition on adjustment applies only to the usual adjustment process (governed by section 245 of the Immigration and Nationality Act), and does not apply to adjustment under the CAA.
The applicant in this case was a native of Cuba but a citizen of the Netherlands. She was able to benefit from this unusual status by using the VWP as a citizen of the Netherlands and later filing for adjustment as a native of Cuba. The basic requirements for an adjustment applicant under the CAA are to be (a) a native or citizen of Cuba; (b) legally admitted or paroled into the U.S.; (c) physically present in the U.S. for at least one year; (d) admissible for adjustment (i.e. having no issues that would make one ineligible, such as a criminal conviction, the commission of fraud, etc.)
While this applicant's situation was uncommon, this case shows that special provisions such as the CAA can come with their own sets of rules. Laws that apply only to natives of certain countries, or people from certain professions, for example, can provide valuable opportunities but at the same time make the immigration laws more complex and difficult to navigate. In cases such as the one above, clearly the efforts of a competent and knowledgeable attorney can make a difference. © The Law Office of Sheela Murthy, P.C.
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