The immigration lawyer Liudmila Marcelo warned this Friday that a new directive from the Citizenship and Immigration Services (USCIS) could effectively render the Cuban Adjustment Act void of practical content without the need for formal repeal, through what she described as a legal "trap."
On Thursday, USCIS published the policy memorandum PM-602-0199, which tightens the criteria for adjusting status within the United States and states that foreigners applying for permanent residency must do so through consular processing in their country of origin, except in extraordinary circumstances.
Marcelo, interviewed by journalist Tania Costa, 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 children who are citizens.
"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," said the lawyer.
The key lies in the requirement for physical presence
The Cuban Adjustment Act requires that the applicant remain in U.S. territory for one year and one day before being able to apply for residency, which structurally differentiates it from the temporary visas mentioned in the memorandum.
However, Marcelo identified the real risk. If at any point Cubans were required to stay outside the country for a year and a day, the requirement would become impossible to fulfill.
"If you are going to say that it also affects the people who are going to make the Cuban adjustment, then indeed... tell me that the status adjustment based on the Cuban Adjustment Act has already ended. Because the essence is not having to return to Cuba in order to be able to adjust status here," he warned.
Faced with that possibility, the lawyer was straightforward: "If they do it that way, it would strike a blow to the Cuban Adjustment Act, but I tell you, I would take him out of the equation. I would completely remove him from the equation because then they wouldn't let you meet the requirement that the law demands you fulfill."
A particularly serious case, according to Marcelo, is that of the Cubans with pending asylum for whom USCIS is already sending to process their consular application in Cuba, the very country they fled from.
"How are you going to send someone who has 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 yes, it is happening," she stated.
The lawyer also highlighted the human impact of the paralysis in the procedures that is affecting countless people. "I have clients waiting for us to send their package since last year, since January, for the status adjustment."
This new directive comes in the context of a historic collapse in residency approvals for Cubans: from over 10,984 monthly approvals in February 2025 to just 15 in January 2026, a decrease of 99.8% according to the Cato Institute.
Meanwhile, ICE detentions of Cuban migrants increased by 463% during the same period, exceeding 1,000 arrests per month.
Marcelo described USCIS's legal interpretation as incorrect and predicted 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."
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