USCIS PM-602-0110

U.S. Citizenship and Immigration Services Office of the Director (MS 2000) Washington, DC 20529-2000 July 29, 2016 PM-602-0110 Policy Memorandum SUBJECT: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children Purpose This policy memorandum (PM) provides guidance to U.S. Citizenship and Immigration Services (USCIS) officers regarding the Violence Against Women Act (VAWA) amendments to the Cuban Adjustment Act (CAA). The amendments provide for continued eligibility for adjustment of status under section 1 of the CAA for an abused spouse or child of a qualifying Cuban principal1. The guidance contained in this PM is effective immediately and in advance of regulatory amendments. This PM revises Chapter 23.11 of the Adjudicator’s Field Manual (AFM); AFM Update AD13-04.

Scope Unless specifically exempted herein, this PM applies to and is binding on all USCIS employees. This policy supplements, but does not supersede, previous guidance on the application of the CAA to principal or dependent applicants. Authority • The Victims of Trafficking and Violence Protection Act of 2000 (VAWA 2000) • The Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005) • The Cuban Adjustment Act of 1966 • The Immigration and Nationality Act (the “Act”) section 101(a)(51)(D) • 8 U.S.C. 1367 Background The CAA became law on November 2, 1966, and provides relief to certain Cuban nationals present in the United States. Section 1 of the CAA was designed to permit Cuban nationals to adjust their status to that of a lawful permanent resident.

Section 1 of the CAA also permits the spouse or child of a qualifying Cuban principal to adjust status if the spouse or child: 1 A qualifying Cuban principal is one who satisfies all of the criteria of a principal applicant for adjustment of status as listed in section 1 of the CAA. PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children Page 2 • Was inspected and admitted or paroled into the United States after January 1, 1959; • Has been physically present in the United States for at least 1 year; and • Resides with the qualifying Cuban principal. VAWA 2000 and VAWA 2005 amended the CAA to make it easier for battered or abused spouses or children of qualifying Cuban principals to adjust status under section 1 of the CAA. Sections 1509 of VAWA 2000 and 823 of VAWA 2005 removed the current residency requirements in the CAA for abused spouses and children and created death and divorce exceptions for abused spouses of qualifying Cuban principals.

Specifically, for an abused spouse or child applying for adjustment of status under section 1 of the CAA, the VAWA amendments provide that: • The abused spouse or child does not need to demonstrate he or she currently resides with the abusive Cuban spouse or parent; • The abused spouse remains eligible to file an application for adjustment of status within 2 years after the death of the abusive Cuban spouse, if the applicant lived with the abusive Cuban spouse; and • The abused spouse remains eligible to file an application for adjustment of status within 2 years after the termination of the marital relationship (i.e., divorce or annulment) from the abusive Cuban spouse, if the abused spouse demonstrates that the: o Termination of the marriage and the abuse by the Cuban spouse are connected; and o The abused spouse lived with the abusive Cuban spouse. The above provisions, added by the VAWA amendments to the CAA, are only applicable to abused spouses and children of qualifying Cuban principals. Policy An abused spouse or child may apply for adjustment of status to that of a lawful permanent resident under section 1 of the CAA provided that his or her abuser is a qualifying Cuban principal. The amendments that this PM makes to AFM 23.11(e)(1) (Cuban principal may have adjusted on a basis other than the CAA) and 23.11(m)(2) (rollback) apply to all CAA cases.

Other than the latter two provisions, this PM does not affect the adjudications of, or procedures relating to, non-abused CAA spouse and/or child cases. Only qualifying Cuban principals will be able to confer eligibility to file for adjustment of status under section 1 of the CAA to abused spouses and children. A qualifying Cuban principal is one who: • Was inspected and admitted or paroled into the United States after January 1, 1959; • Was physically present in the United States for at least 1 year; • Is eligible to receive an immigrant visa; • Is admissible to the United States for lawful permanent residency; and PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children Page 3 • Has applied for, and is eligible for, adjustment of status; or • Has adjusted status, whether under the CAA or another adjustment of status provision. The VAWA amendments establish divorce and death exceptions and remove the residency requirements for abused spouses and children, but do not change the requirement that the abuser be a qualifying Cuban principal.

The adjustment of status of the abused spouse or child cannot precede the adjustment of the qualifying Cuban principal; the adjustment of status must be completed at the same time as, or subsequent to, the qualifying Cuban principal's adjustment. The “any credible evidence” provision of section 204(a)(1)(J) of the Act applies to these cases. USCIS will consider any and all credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of USCIS.

VAWA confidentiality provisions ( ) apply to applicants with a pending or approved application for adjustment of status as the battered or abused spouse or child of a qualifying Cuban principal. Implementation The AFM is amended as follows:  1. Chapters 23.11(a), (e), (g), (h), (i), (j), (k), and (m) are revised to read: 23.11 Cuban Adjustment Act Cases. (a) General. *** The Victims of Trafficking and Violence Protection Act of 2000 (Pub.

L. 106-386) (VAWA 2000) and the Violence Against Women and Department of Justice Reauthorization Act of 2005 (Pub. L. 109-162) (VAWA 2005), amended the CAA to provide continued eligibility for adjustment of status as the battered or abused spouse or child under section 1 of the CAA. Under certain circumstances, abused spouses or children may remain eligible for adjustment of status even where the: • Spouse or child is not currently residing with the qualifying Cuban principal;2 2 A qualifying Cuban principal is one who: • Was inspected and admitted or paroled into the United States after January 1, 1959; • Was physically present in the United States for at least 1 year; • Is eligible to receive an immigrant visa; PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children Page 4 • Marital relationship was terminated (by divorce, annulment, etc.) not more than 2 years ago; or • Qualifying Cuban principal died not more than 2 years ago. A spouse or child must demonstrate by providing any credible evidence that he or she was the subject of abuse or extreme cruelty by the qualifying Cuban principal, during the relationship, to qualify for the VAWA eligibility provisions for adjustment of status under the CAA. ***** (e) Dependents.

(1) General requirements for spouse or child. The spouse or child of a qualifying Cuban applicant may also seek adjustment under section 1 of the Act regardless of his or her nationality or place of birth. He or she must, however, meet of all the other eligibility criteria stated above, and must reside with the principal applicant. See Matter of Bellido, 12 I. & N. Dec.

369 (R.C. 1967). It is important to note that this is a very different standard from the one relating to spousal visa petition proceedings, where a petitioner need not prove marital viability, but rather that the marriage was valid at its inception. The adjustment of the spouse or child cannot precede the adjustment of the principal applicant; the adjustment must be completed at the same time as, or subsequent to, the principal's adjustment. Matter of Quijada-Coto, 13 I. & N. 740 (BIA 1971).

In addition, the qualifying relationship may have been created before or after the principal's adjustment. Matter of Milian, 13 I. & N. 480 (A.R.C. 1970). While the principal applicant must have adjusted to lawful permanent resident (LPR) status in order for the non-Cuban spouse or child to qualify under the CAA, it is not necessary for the principal applicant to have adjusted under the CAA itself. Adjustment of a Cuban native or citizen to LPR status under any other adjustment provision will also make it possible for the non-Cuban spouse or child to seek adjustment under the CAA.

Finally, the spouse or child of a Cuban applicant is adjusted as an unconditional permanent resident, regardless of the duration of the qualifying marriage. The restrictions of section 216 of the Act do not apply. (2) Continued eligibility provisions for abused spouse or child (VAWA). The spouse or child of a qualifying Cuban principal, subjected to battery or extreme cruelty by the Is admissible to the United States for lawful permanent residency; and • • Has applied for, and is eligible for, adjustment of status; or • Has adjusted status, whether under the CAA or another adjustment of status provision.

PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children Page 5 qualifying Cuban principal, may seek adjustment of status under section 1 of the CAA without having to demonstrate current residency with the qualifying Cuban principal. The abused spouse or child must have resided with the qualifying Cuban principal at some point during the relationship as spouse or child of the qualifying Cuban principal. As with all CAA derivatives, a qualifying Cuban principal is an individual who is eligible for and has applied for adjustment of status or has adjusted status to a lawful permanent resident, whether under the CAA or another adjustment of status provision. An abused spouse or child may adjust status under certain circumstances when the qualifying Cuban principal is not a lawful permanent resident.

Loss of status. If an LPR has battered or subjected to extreme cruelty the • LPR’s spouse or child, the spouse or child may file an immigrant visa petition on his or her own behalf. Once the abused spouse or child has filed an immigrant visa petition, the petition remains valid even if the LPR loses his or her LPR status. INA 204(a)(1)(B)(v).

The abused spouse may file an immigrant visa petition even after the LPR loses status, as long as the spouse files within 2 years of the date the LPR lost status and the LPR lost status “due to an incident of domestic violence.” INA 204(a)(1)(B)(ii)(II)(CC)(aaa). Given the ameliorative purpose of the various VAWA provisions, and the lack of a petition requirement for CAA cases, these INA provisions reasonably modify the ordinary rules for CAA adjustment in the case of abused spouses and children of a Cuban principal. For this reason: o o If the Cuban principal loses LPR status at any time after the abused spouse or child applied for CAA adjustment, the spouse or child remains eligible for CAA adjustment; and If the Cuban principal loses LPR status before the spouse or child applies for CAA adjustment, the spouse or child can still apply if the Cuban principal lost LPR status due to an incident of domestic violence and the spouse or child applies within 2 years of the date the Cuban principal lost status. • Divorce. If, at the time of filing, the spousal relationship has been legally terminated (ex. divorce, annulment, etc.) within the past 2 years, the abused spouse remains eligible for adjustment of status under section 1 of CAA provided that: o There is a demonstrated connection between the legal termination of marriage within the past 2 years and the battery or extreme cruelty perpetrated by the qualifying Cuban principal; PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children Page 6 o The abused spouse files an application for adjustment of status under section 1 of the CAA within 2 years of the legal termination of the marriage; and o The abused spouse resided, at some point during the spousal relationship, with the qualifying Cuban principal. • Death.

As noted, the Cuban principal’s death after the abused spouse or child has applied for CAA adjustment does not end the applicant’s eligibility. Also, if the abused spouse of a Cuban principal lived with the Cuban principal at some point during the spousal relationship, but did not file an application before the Cuban principal’s death, the abused spouse will remain eligible for adjustment of status under section 1 of the CAA if the abused spouse applies within 2 years after the death of the qualifying Cuban principal. The provisions in this chapter 23.11(e)(2) concerning the effect of the Cuban principal’s loss of status, and of divorce or death apply only to CAA applications filed by abused spouses and children of a Cuban principal. ***** (g) Procedure for applying. *** (1) Form I-485, Application to Register Permanent Residence or Adjust Status. • The current Form I-485 (Rev. 06/20/13) does not provide an application type for an abused spouse or child of a qualifying Cuban principal. An abused spouse or child must apply for adjustment of status under section 1 of the CAA using Form I-485 and selecting the application type utilized by non-abused spouses and children of a Cuban applicant (“I am the husband, wife, or minor unmarried child of a Cuban…”).

Abused spouses and children may select this application type even if they are no longer residing with the qualifying Cuban principal at the time of filing. A VAWA self-petition is not required. ***** (h) Proof of eligibility. *** • An individual seeking CAA adjustment as the abused spouse or child of a qualifying Cuban principal must present the same evidence of the relationship to the Cuban principal listed above. The individual must also present evidence that PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children Page 7 the individual has been battered or subjected to extreme cruelty by the Cuban principal. – USCIS applies the “any credible evidence” provision in INA 204(a)(1)(J) of the Act to VAWA CAA cases. – A VAWA CAA applicant does not need to file a Form I-360. – But the evidence that could support a VAWA Form I-360 would also – be relevant to a VAWA CAA claim. In weighing the evidence the following issues would be most salient: o Whether the abuse occurred in the relationship; o Whether the applicant resided with the qualifying Cuban principal at some point during the relationship; o Whether, if the marriage terminated other than by death, the termination was connected to the claimed abuse; o Whether, if the principal has died, the applicant filed the Form I-485 within 2 years of the principal’s death; or o Whether, if the principal has lost LPR status, the loss of status was due to an incident of domestic violence.

The VAWA confidentiality requirements of apply to VAWA CAA applicants just as they do to all VAWA cases. The adjudicator in his or her sole discretion will determine whether the evidence is credible and the weight to give it. The VAWA amendments to the CAA do not alter other existing evidentiary standards or requirements applicable to adjustment of status applications (e.g., evidence demonstrating that the spouse or child is the spouse or child of the qualifying Cuban principal, was inspected and admitted or paroled, physically present in the United States for 1 year). • A non-Cuban abused spouse or child does not need to provide a copy of the qualifying Cuban principal’s adjustment of status application. However, the abused spouse or child must provide sufficient information to enable USCIS to verify the qualifying Cuban principal’s status or a pending application for adjustment of status under the CAA.

Such information may include the following: abuser’s full name, date of birth, place of birth, parents’ names, alien registration number, Form I-94s, social security number, or other identifying information. • The burden rests with the applicant to demonstrate by a preponderance of the evidence that he or she is eligible for the benefit sought. PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children (i) Jurisdiction. All applications for adjustment of status under the CAA must be filed in accordance with the current Form I-485 instructions. Abused spouses and children do not need to file a separate VAWA self-petition.

The Vermont Service Center’s (VSC) VAWA Unit will adjudicate applications for adjustment of status under section 1 of CAA for an abused spouse or child. The VSC may refer the application to the appropriate field office for interview. If the VSC decides to relocate the application for interview, the adjudicating officer will first render an opinion on the abuse determination, and then relocate the individual’s A-file to the appropriate field office for a final decision on the adjustment of status application. (j) Processing instructions.

(1) Procedures. *** (2) Class of Admission Updates: “384” For VAWA CAA. An officer adjudicating an application for adjustment of status under section 1 of the CAA filed pursuant to the VAWA amendments will ensure that the Central Index System (CIS) is properly updated with the appropriate class of admission (COA) 384, used to identify these specially protected cases. If the officer is unable to update the CIS, then the officer must contact the local records office with write access to the CIS to request the update to the COA. The 384 COA is entered in advance of a final decision on the adjustment of status application.

Once a final decision is made, the COA is populated to reflect the correct classification (i.e., CU-7 if approved); however, the history screen of the CIS will maintain the previous 384 COA. (3) Previously filed VAWA self-petition, approved, denied, or pending. If there is evidence of a previously filed VAWA self-petition, the adjudicating officer must review the entire record prior to making a decision on the application for adjustment of status under section 1 of the CAA. – A previously approved VAWA self-petition based on the same relationship may be considered persuasive evidence of the existence of abuse in the relationship. Nevertheless, the adjudicating officer should not assume that the alleged abuser and the basis for the claim in the VAWA self-petition is the same as the basis for PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children Page 9 the application for section 1 CAA adjustment of status as an abused spouse or child. – Similarly, a previously denied VAWA self-petition is not necessarily proof that the claim of abuse in the application for section 1 CAA adjustment of status as an abused spouse or child is unfounded.

The VAWA self-petition may have been denied because the abuser was not an LPR at the time of filing or for other reasons unrelated to the abuse or the relationship between abuser and the abused spouse or child. In the case of a denied VAWA self-petition, the adjudicating officer must request the complete A-file and review the evidence provided in support of the VAWA self-petition and reason for denial in advance of a final decision on the section 1 CAA adjustment of status application. – If the VAWA self-petition is pending, it is within the discretion of the adjudicating officer to wait for a final decision on the VAWA self-petition prior to rendering a decision on the application for section 1 CAA adjustment of status as an abused spouse or child. The adjudicating officer may contact the VSC to request a possible expedite of the VAWA self-petition. (k) Interview.

At the discretion of USCIS, the application may be referred to the appropriate field office for an interview. The interviewing procedures and techniques are essentially the same as those on a section 245 interview (see subchapter 23.4). However, three areas of potential difficulty should be addressed: *** • When an applicant has made a claim of abuse and is seeking adjustment of status as an abused spouse or child, the confidentiality provisions of apply. – An abused spouse or child with a pending or approved application for adjustment of status to that of an LPR under section 1 of the CAA is by definition a “VAWA self-petitioner” as defined at section 101(a)(51)(D) of the Act (even if a VAWA self-petition is never filed). If the application for adjustment of status under section 1 of the CAA is denied, the confidentiality provisions will continue to apply to the applicant until all final appeal rights are exhausted.

Please refer to the December 15, 2010 guidance memo entitled “Revocation of VAWA-Based Self-Petitions (Forms I-360) (AFM Update AD10-49)” for information on how to comply with the VAWA confidentiality provisions. (l) Waivers. ***** PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children (m) Approval Procedures. (1) General. With the exception of rollback provisions discussed in paragraphs (2) and (3), the general procedures for approval of an adjustment of status application set forth in subchapter 23.2 of this field manual apply to all CAA cases (including VAWA CAA cases).

The COA codes pertaining to CAA cases are: *** • CU-7: Adjustment of status class of admission for non-Cuban spouses and children adjusting under the Act (to include battered or abused spouses and children of a qualifying Cuban principal or CU-6). (2) General Rollback Provisions. ***** The non-Cuban spouse and children of a qualifying Cuban applicant are entitled to the same rollback provision as the qualifying Cuban principal. The non-Cuban spouse or child receives the full 30-month rollback, even if that means the individual becomes an LPR before the date on which the individual became the Cuban applicant’s spouse or child. See Silva-Hernandez v. USCIS, 701 F.3d 356 (11th Cir.

2012). This same rule applies to VAWA CAA cases. *****  2. The AFM Transmittal Memoranda button is revised by adding a new entry, in numerical order, to read: AD13-04 [DATE] Chapter 23.11 Provides guidance on the VAWA amendments to the Cuban Adjustment Act for abused spouses and children. PM-602-0110: VAWA amendments to the Cuban Adjustment Act: Continued Eligibility for Abused Spouses and Children Use This PM is intended solely for the guidance of USCIS personnel in the performance of their official duties.

It is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or manner. Contact Information Questions or suggestions regarding this PM should be addressed through appropriate channels to the Family Immigration & Victim Protection Division, Office of Policy & Strategy.