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 trap that could become 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 foreign nationals applying for permanent residency must do so through consular processing in their country of origin, except in extraordinary circumstances.
Marcelo, interviewed by Tania Costa, journalist from CiberCuba, explained that the measure primarily targets individuals who entered with tourist, student, or temporary work visas and subsequently sought to adjust their status through marriage or U.S. citizen children.
"In my interpretation, it does not apply to the Cuban Adjustment Act because the Cuban Adjustment Act requires that you be here for at least one year and one day," stated the lawyer.
The key lies in the requirement for physical presence: the Cuban Adjustment Act mandates that the applicant must remain in U.S. territory for one year and one day before they can apply for residency, which structurally distinguishes it from the temporary visas referenced in the memorandum.
"So far, the Cuban Adjustment Act, if you are Cuban, you enter with the ESTA (Electronic System for Travel Authorization) and wait a year and a day, does not affect you," Marcelo specified.
However, the lawyer identified what she called "the trap." If at any point Cubans were required to wait that year and a day outside of the country, the requirement would become impossible to fulfill.
"If you’re going to say that it also affects the people who are going to make the Cuban Adjustment, then well… tell me that the status adjustment based on the Cuban Adjustment Act has ended. Because the essence is not having to return to Cuba in order to adjust status here," he warned.
Faced with that possibility, Marcelo chose to remove the Cuban Adjustment Act from the equation. "If they do it that way, it would hit hard, but I’m telling you, I’ll take it out of the equation. I will completely remove it from the equation because then they wouldn’t let you meet the requirement that the law demands you fulfill."
The lawyer also noted that the measure does affect individuals from 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 they fled from.
"How are you going to send a person who has an asylum case pending to undergo consular processing in the country where they have an asylum pending because they are afraid to go back? But it is happening," he reported.
Regarding the extent of the measure, Marcelo was emphatic. "A lot of people, a lot of people. I have clients waiting for us to send their packages since last year, since January, for their status adjustment," he explained.
The lawyer described USCIS's legal interpretation as incorrect and anticipated judicial consequences. "They are conducting an incorrect analysis of the law, which makes me think that, as always, there will be lawsuits, and those lawsuits will be in our favor."
This new directive comes in the context of a historic collapse in residency approvals for Cubans. From more than 10,984 monthly approvals in February 2025 to just 15 in January 2026, a decrease of 99.8%, according to the Cato Institute, while ICE detentions of Cuban migrants increased by 463% during the same period.
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