On January 5, 2023, US President Joe Biden announced that Cubans, Nicaraguans and Haitians arriving at the US border will be returned to the countries they entered from or deported. The message is clear: Do not just show up at the border.

He also said that his Administration had implemented a procedure to establish a process similar to the one that had been applied for Venezuelans in October 2022, and for Ukrainians before that.

El Toque Juridico has analyzed the directive dated January 5, 2023 by the United States Secretary of Homeland Security Alejandro Mayorkas, and has summarized the most important issues that Cubans wanting to emigrate to the US need to know in 11 questions.

1. When does the new directive come into force?

The new directive is effective as of January 6th. This means that any Cuban trying to enter the U.S. illegally across its borders can be deported or approved and subjected to expedited removal.

In the case of the southern border, the Mexican Government has issued a statement committing itself to receiving a total of 30,000 citizens from Cuba, Haiti, Nicaragua and Venezuela who the US authorities may return to Mexico, every month. 

If the number of migrants from these four countries arriving at the southern border, without meeting the requirements stipulated in the directive, is more than this, they could be granted entry into the US, but only so they can be detained and deported by expedited removal.

The Biden Administration is in a better position today to say “no” to migrants entering the country, as Title 42 (implemented by the Trump Administration) remains in force and Mexico has expressed its interest in accepting up to 30,000 Nicaraguans, Cubans, Venezuelans and Haitians every month. 

Meanwhile, Deputy Minister of Foreign Relations, Carlos Fernandez de Cossio, announced, after negotiations with the Cuban Government last November, that Cuba was willing to receive Cubans who had a deportation order, after refusing to do this since 2020, claiming its airports had been closed because of COVID-19.

The directive established on Thursday January 5, 2023 means that Cubans on their way to the US-Mexico border will have to follow and respect the new procedure. The same applies to the Nicaraguans, Haitians and Venezuelans.

2. Does the directive apply to people who reach the US by sea?

Yes, the directive applies to anyone who reaches the US border illegally. Rafters who reached US soil were granted entry before, but they will now be affected by this new measure. The policy points out that the objective is to reduce illegal immigration and explicitly mentions arrival by sea as one of the most dangerous and fastest growing means, especially among Cubans, in the last fiscal year.

It also stipulates that the only way Cubans can legally enter the country will be by air and that only exceptional cases will be authorized if they enter by land or ports that aren’t airports.

3. What are the general requirements to apply for the new process established by the directive?

To qualify, people need to have a sponsor in the US who commits to providing financial support to the migrant, for the duration of their parole. People looking to emigrate need to pass Department of Homeland Security’s (DHS) security vetting process. They will also have to pay for their own ticket from where they are to an airport within the US. 

Cubans who have been issued a deportation order from the US within the past five years won’t be granted parole under the new directive. This also applies to people who have entered the US, Mexico or Panama illegally since January 9, 2023. 

4. Who can initiate the process?

Cubans wanting to emigrate won’t be able to initiate the process, it needs to be initiated by someone living in the US who wants to act as this migrant’s sponsor. 

The migrant’s sponsor needs to create a profile on the website https://myaccount.uscis.gov and then fill in the online form I-134A (Declaration of Financial Support). Then, both the sponsor and beneficiary will be subjected to DHS’ security vetting process which will decide, at its own discretion, if they both meet the requirements needed to be approved and move on to the next step in the process.

5. Who can be a sponsor?

The sponsor will need to live in the US. They don’t need to be of Cuban origin and they don’t need to be permanent residents. The directive recognizes a sponsor as any US citizen or permanent resident. But anyone who has legal status in the US can also be a sponsor for this process; including those who are currently in the country on parole or have been granted a Deferred Action or Deferred Enforced Departure.

Sponsors need to undergo DHS’ security vetting process. Meanwhile, they also need to prove they have sufficient funds to receive, maintain and support the migrant during their parole.

6. What is parole?

Parole is a kind of conditional freedom that the Secretary of Homeland Security can authorized discretionally to temporarily allow people without a legal basis to be admitted into the country. 

Parole isn’t a migrant’s formal “admittance” into the country. It gives the recipient “applicant” status that also allows them to apply and receive a work permit. This status lasts for the duration of the parole or until the individual manages to change or adjust their immigration status. 

DHS can cancel this at any time.

7. How long does parole for Cuban recipients last and what are the conditions?

Parole granted under the new program will now last up to two years. In addition to the existence of a sponsor, it will grant recipients access to humanitarian aid or other immigration benefits such as food or financial support. 

It will also allow aspiring Cubans to modify their immigration status after a year, under protection of the Cuban Adjustment Act. 

8. Who can receive parole under the new directive?

Beneficiaries of this program need to be living outside the US. Generally-speaking, they should be Cubans, although the directive recognizes that non-Cubans can also benefit from the program if they are immediate family members and are going to travel to the US together. The directive recognizes immediate family members as spouses, civil partners and single children under the age of 21.

They have to have a sponsor that submits a I-134A form on their behalf, and that is checked and verified by the US Citizenship and Immigration Services (USCIS). Furthermore, they need to hold a valid passport and need to pay for their plane ticket from their place of origin to the airport in the US.

Parole beneficiaries will need to subjected to a security vetting process and need to meet additional requirements, including vaccination and other public health guidelines.

They will also need to prove that parole in their favor will be of significant public benefit or for humanitarian reasons.

9. Which Cubans don’t qualify for the parole program?

Cubans who are currently permanent residents or are citizens in another country that isn’t Cuba are not eligible. Nor are Cubans who hold refugee status in another country, unless the Department of Homeland Security has authorized a similar program for citizens of the country that granted asylum. For example, if a Cuban applied and received refugee status in Venezuela, Nicaragua or Haiti, then they can still apply for the US Parole Program. 

A beneficiary will not be granted parole if they do not pass the security vetting process or if DHS considers, at their own discretion, that they do not deserve to benefit from the program. 

Nor do people who have been deported from the US in the past five years qualify, or those who are banned from entering because of a previous deportation order.

People who have entered the US illegally after January 9, 2023 or have crossed the border in Mexico or Panama after this date do not qualify either.

Under-18s who are not accompanied by a parent or legal guardian will not qualify either. They will need to travel to the US under the care and custody of their parents or legal guardians to be considered potential beneficiaries of this kind of parole.

10. Are there special medical requirements that parole beneficiaries need to meet?

The directive establishes that the US Department of Homeland Security will be able to determine, alongside Centers for Disease Control and Prevention additional health requirements that beneficiaries need to comply with. 

Vaccination certificates and tests for disease – including COVID-19, poliomyelitis, and measles – are all requirements. Cubans living on the island might particularly face an additional challenge as US health authorities have not recognized vaccines used to immunize the Cuban population against COVID-19. 

The U.S. Secretary of Homeland Security has announced that the latest public health requirements for this process will be available here: www.uscis.gov/CHNV .

11. What steps need to be taken to push the process along?

a). Declaration of financial support 

A sponsor living in the U.S. needs to complete form I-134A online, on USCIS’ official website. They should fill a separate I-134A form for every beneficiary they want to support, including Cubans’ immediate family members and underage children. Then, USCIS will do a background check on the sponsor and potential beneficiaries, and will determine whether the process continues or not.

b). Send personal information

If USCIS confirms the sponsor, then they or the beneficiaries mentioned will receive an email with instructions on how to create an online account at https://myaccount.uscis.gov and information about the steps they need to complete in order to continue the application. 

The beneficiary will need to confirm their personal information and certify that they meet the eligibility criteria. Part of confirming eligibility on their myUSCIS account means people looking for authorization to travel the US will need to confirm they meet public health requirements.

c). Send an application using the CBP One mobile app

After confirming personal information on the myUSCIS portal and completing compulsory eligibility statements, the beneficiary will receive instructions on how to access the CBP One mobile app. They will then need to add limited personal information on the app and send a photo.

d). Authorization to travel to the U.S.

After completing step c), the beneficiary will receive a notification on their myUSCIS account that will confirm whether they’ve been granted authorization to travel and apply for parole. If they are approved, the authorization will be valid for 90 days normally and beneficiaries will be responsible for ensuring their flight on a commercial flight.

Authorization to travel does not guarantee parole will be granted upon arrival in the US. Parole being granted is at the discretion of US Immigration officers; which takes place at the port of entry and not before. 

e). Applying for parole at the port of entry

Every individual arriving at a port of entry under the process will be vetted by US authorities again. Beneficiaries will be subjected to an additional assessment as part of this vetting process, which includes a biometric screening test and fingerprints. People who are considered to represent a threat to U.S. national security or don’t deserve parole can be sent to US Immigration and Customs Enforcement (ICE) to be detained and later deported.

f). Granting parole

If parole is granted, the beneficiary will have the opportunity to legally enter and stay in the US for up to two years, depending on health and vetting requirements. They will be able to apply for a work permit according to US law. 

Meanwhile, people over two years old will have to take a tuberculosis test, including an IGRA test, within 90 days upon arrival in the US.

This article was translated into English from the original in Spanish.