AP: “Obama ends visa-free path for Cubans who make it to US soil”

President Barack Obama announced last Thursday that he is ending a longstanding US immigration policy allowing Cubans who arrive in the US to stay and become legal residents. The change for this policy, commonly referred to as the "wet foot, dry foot" policy, comes after months of negotiations and is an attempt to “normalize relations” with Cuba. It is contingent upon Cuba agreeing to take back certain Cuban nationals in the US who have been ordered removed. 

In a statement, President Obama called the "wet foot, dry foot" policy outdated. “Effective immediately, Cuban nationals who attempt to enter the United States illegally and do not qualify for humanitarian relief will be subject to removal, consistent with US law and enforcement priorities,” he said. “By taking this step, we are treating Cuban migrants the same way we treat migrants from other countries.” 

Since President Obama is using an administrative rule change to end the policy, President-Elect Trump could undo the change after the inauguration this week; however, ending a US policy that has allowed hundreds of thousands of people to enter the US without documentation would arguably seem to align with Trump’s comments on enacting tough immigration policies.

The Cuban government issued a statement calling the agreed upon policy change “an important step in the advance of bilateral relations” that will guarantee “regular, safe and orderly migration.” The government said the policy encouraged illegal travel in unseaworthy vessels, homemade rafts, and inner tubes.

The "wet foot, dry foot" policy was created by President Bill Clinton in 1995 to revise a more liberal immigration policy that allowed Cubans captured at sea to enter the US and become legal residents in a year. This change to the “wet foot, dry foot” policy comes after President Obama and Cuban President Raul Castro established full diplomatic ties and opened embassies in their respective capitals in 2015. In anticipation of this policy change, there has been an increase in Cuban immigration, particularly across the US-Mexico border. According to statistics published by the Department of Homeland Security, since October 2012 more than 118,000 Cubans have entered at ports of entry along the border, including more than 48,000 people who arrived between October 2015 and November 2016.

As part of the changes, the Cuban Medical Professional Parole Program, started by President George W. Bush in 2006, is also being rescinded. The measure permitted Cuban doctors, nurses, and other medical professionals to seek parole in the US while on assignments abroad, but the president noted these doctors can still apply for asylum at US embassies around the world. "By providing preferential treatment to Cuban medical personnel, the medical parole program…risks harming the Cuban people," Obama said in his statement.

Reactions to the change in policy are varied. "People who can't leave, they could create internal problems for the regime," Jorge Gutierrez, an eighty-year-old veteran of the Bay of Pigs invasion, tells the AP. He adds: "From the humanitarian point of view, it's taking away the possibility of a better future from the people who are struggling in Cuba." Representative Illeana Ros-Lehtinen, a Florida Republican who immigrated to the US from Cuba as a child, says that eliminating the medical parole program is a "foolhardy concession to a regime that sends its doctors to foreign nations in a modern-day indentured servitude." 

Even with this policy change, Cubans are still covered by the 1966 Cuban Adjustment Act, which grants them permanent residency after they have been in the US for one year. Up until the policy change last week, Cuban nationals who made it to the US were given temporary “parole” status for the one year, but this will no longer be granted. While the change in policy is effective immediately, those already in the US and being processed under both the "wet foot, dry foot" policy and the medical parole program will be able to continue the process toward obtaining legal status. Officials also say the change in policy does not affect the lottery that allows 20,000 Cubans to come to the US each year.

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

US Citizenship & Immigration Services (USCIS) has published a final rule to “modernize and improve” certain aspects of some employment-based nonimmigrant and immigrant visa programs. Proposed earlier this year, USCIS says these amended regulations will better “enable US employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.” The new rule is scheduled to go into effect on January 17, 2017. We will be discussing these changes, some of which are quite complex, in depth in a later post. In the meantime, however, here is a summary of the highlights.

The new rule will:

• Establish two grace periods of up to ten days each for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide “a reasonable amount of time” for them to prepare to begin employment in the US and afterwards to depart the country or take actions to extend, change, or otherwise maintain lawful status. Similar grace periods are currently available to individuals with H-1B, O, and P classification, and extending a similar grace period will promote “stability and flexibility” for highly-skilled workers;
• Establish a grace period available to certain individuals (and their dependents) in high-skilled nonimmigrant classifications, including H-1B, H-1B1, O-1, E-1, E-2, E-3, L-1, and TN classifications, for up to sixty consecutive days during each period of petition validity (or other authorized validity period) when their work ceases. This grace period will enable these nonimmigrant workers to seek new nonimmigrant employment and extend or change their nonimmigrant status while remaining in the US;
• Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence;
• Streamline the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increase job portability, and provide stability and flexibility for workers to better enable US employers to employ and retain highly-skilled workers who are beneficiaries of an employment-based immigrant visa (Form I-140) petitions, also while allowing these workers to accept promotions, change positions within the same company, change employers, and seek other employment;
• Improve job portability for certain approved I-140 beneficiaries by maintaining a petition’s validity under certain circumstances “despite an employer’s withdrawal of the approved petition or the termination of the employer’s business."
• Allow certain high-skilled individuals in the US under E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization if:
  • They are the principal beneficiaries of an approved I-140 petition;
  • An immigrant visa is not authorized for issuance for their priority date; and
  • They can demonstrate that there are “compelling circumstances” to justify DHS issuing an EAD card in its discretion;
• Clarify various policies and procedures related to the adjudication of H-1B petitions, including providing H-1B status beyond the standard six year period of admission, determining cap exemptions, counting workers under the H-1B cap, portability, licensure requirements, and protections for whistleblowers; and
• Clarify and improve DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers in order to enhance USCIS’ consistency in adjudication.

Importantly, the final rule will automatically extend the employment authorization and validity of employment authorization documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs, sure to be welcome news for EAD holders. Closely-related, the rule would also eliminate the regulatory provision that requires USCIS to adjudicate the application for employment application within ninety days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the ninety-day timeframe. As mentioned, a more thorough and in-depth review of these changes are forthcoming on this blog. Stay tuned.