The immigration attorney Liudmila Marcelo analyzed this Friday the impact of the new directive from the U.S. Citizenship and Immigration Services (USCIS) on the Cuban community and concluded that, for now, the Cuban Adjustment Act would not be directly affected, although she warned that there is a legal loophole that could turn into a definitive blow against that immigration pathway.
USCIS published on Thursday the policy memorandum PM-602-0199, which tightens the criteria for adjusting status within the United States and establishes that foreigners applying for permanent residency must do so through consular processing in their country of origin, except in extraordinary circumstances.
Marcelo, interviewed by Tania Costa, a journalist from CiberCuba, explained that the measure primarily targets individuals who entered on tourist, student, or temporary work visas and then sought to adjust their status through marriage or citizen children.
"In my interpretation, it does not apply to the Cuban Adjustment Act because the Cuban Adjustment Act requires that you stay for at least one year and one day," the lawyer stated.
The key lies in that requirement of physical presence: the Cuban Adjustment Act mandates that the applicant must remain in U.S. territory for one year and one day before being able to apply for residency, which structurally distinguishes it from the temporary visas mentioned in the memorandum.
"Until now, the Cuban Adjustment Act, if you are Cuban, you enter with the ESTA (Electronic System for Travel Authorization) and wait for one year and one day, it does not affect you," clarified Marcelo.
However, the lawyer identified what she called "the trap." If at any point Cubans were required to wait that year and a day outside the country, the requirement would become impossible to meet.
"If you are going to say that it also affects the people who are going to make the Cuban Adjustment, then yes... tell me that the status adjustment based on the Cuban Adjustment Act has ended. Because the essence is not having to return to Cuba to be able to adjust your status here," he warned.
Faced with that possibility, Marcelo chose to remove the Cuban Adjustment Act from the equation. "If they do it this way, it would be a blow, but I can already tell you, I'm taking it out of the equation. I'm completely removing it from the equation because otherwise, they wouldn't let you meet the requirement that the law demands you fulfill."
The lawyer also pointed out that the measure does affect people of other nationalities who enter with ESTA and have relatives in the United States who could petition for them, such as Venezuelans with dual European citizenship.
A particularly serious case, according to Marcelo, is that of Cubans with pending asylum. USCIS is already sending them to undergo consular processing in Cuba, the very country from which they fled.
"How can you send a person with a pending asylum application to undergo a consular process in the country where they have a pending asylum because they are afraid to return? But it is happening," she stated.
Regarding the scope of the measure, Marcelo was emphatic. "So many people, so many people. I have clients waiting for us to send their packages since last year, since January, for the status adjustment," he explained.
The attorney described USCIS's legal interpretation as incorrect and anticipated judicial consequences. "They are conducting an incorrect analysis of the law, which leads me to believe that, as always, there will be lawsuits, and those lawsuits will then be in our favor."
This new directive arrives in a context of historic collapse in residency approvals for Cubans. From over 10,984 monthly approvals in February 2025 to just 15 in January 2026, a drop of 99.8% according to the Cato Institute, while ICE detentions of Cuban migrants increased by 463% in the same period.
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