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Success Story No. 6

Spanish Immigrant Wins Permanent Residence Despite Overstaying Visa Waiver Program Visit

Fausto, born in Havana, Cuba, entered the United States through the Visa Waiver Program.

For several years, he had wanted to leave his birthplace. He disagreed with many of government’s policies. While attending college, Fausto joined the opposition. This decision would change his life forever.

Fearing arrest, he left Cuba shortly after his graduation. He fled to Spain, where his mother’s parents lived, to continue with graduate level studies.

When he did not return home after his schooling concluded, Fausto’s parents were informed by officials that he would be arrested upon his return and placed in jail. His parents were also told the government knew about his underground political activities, and he would have to also face punishment for such crimes.

Both Fausto and his parents feared for his safety, well aware such prisoners were subject to cruel measures.

They decided it was in his best interests to remain in Spain. Over time, he became a naturalized citizen of Spain.

Cuban Immigrant Enters U.S. Under Visa Waiver Program For Spanish Citizens

About 20 years after leaving Cuba, Fausto decided to take a vacation in the United States. He was admitted under the Visa Waiver Program (VWP) for Spanish citizens. He was admitted to the U.S. for a three-month period.

During his time here, he met some Cuban refugees. Once they heard his story, they encouraged him to apply for asylum if he wanted to stay and live in the United States. Knowing he only had authorization for a stay of 90 days, Fausto quickly filed an asylum application. His new friends told him that since he had filed the application, he did not have to leave until its merits had been determined.

He lost. He was sent to immigration court to face deportation charges.

Since he had used most of his savings, he went to a San Diego non-profit organization handling immigration and asylum cases. They accepted his case.

At court, the government attorney asserted that since he entered under the Visa Waiver Program and overstayed, Fausto was only entitled to a notice of referral, not a notice to appear. This meant his only course of defense was to pursue his asylum claim.

However, Fausto’s asylum case was weak due to his legal citizenship in Spain and long absence from Cuba.

Knowing the case presented issues they were not equipped to handle, the non-profit lawyers asked Carlos if he could take over helping Fausto. Carlos agreed and sent notice to the court indicating he would be taking over representation for Fausto’s defense against deportation.


Almost immediately, Carlos spotted a missing issue. Carlos noticed that the Cuban Adjustment Act, a little known law passed in 1996, had not been discussed at the earlier hearing.

If Fausto could meet its requirements, Carlos believed, Fausto was entitled self-adjust to green card status.

In his first appearance on Fausto’s behalf at court, Carlos asked the judge for time to address the applicability of the Cuban Adjustment Act (CAA).

DHS counsel countered, stressing that by virtue of being an overstay under the VWP, Fausto’s only defense was asylum. She argued there are no exceptions for overstays in Jose’s situation.

Overstays, asserted the government lawyer, were specifically excluded from adjustment to legal residency

Although the judge leaned towards the views of government counsel, he gave Carlos 60 days, as Fausto’s new lawyer, to prove why the CAA applied in cases involving VWP overstays.

What Is An Overstay?

When an immigrant enters the U.S. with a visa to stay for a limited period of time, but fails to leave when the authorized period expires, the immigrant is considered to be an overstay and subject to deportation or removal.

Contrary to popular belief, not all “undocumented immigrants” living in the United States entered without inspection. According to experts, nearly 45% entered legally and today are officially “overstays”.

The rules for being an overstay are harsher under the three-month Visa Waiver Program than under regular six-month temporary visitor, employment, and educational visas.

A Clash Of Laws: The Visa Waiver Program Vs. The Cuban Adjustment Act

Carlos knew that resolving the clash between the Visa Waiver Program and the Cuban Adjustment Act in favor of his client would not be easy.

For years, the CAA has been a mystery for California-based immigration lawyers. Most Cuban asylum-type claims have been raised in Florida, where a large majority of Cubans live.

Unlike many of his local colleagues, as a San Diego immigration lawyer, Carlos had acquired experience helping Cuban immigrants and Cuban refugees in other states, including Florida.

After he completed weeks of research, Carlos asserted two points:

First, Carlos pointed out that the provisions of the Visa Waiver Program addressed the normal procedures for seeking to become a green card holder. The CAA, he emphasized, was not a normal, but a special, procedure created for Cuban immigrants to become lawful permanent residents of the United States.

Second, the Cuban Adjustment Act imposed no limits on a Cuban national’s ability to pursue residency in the U.S. other than those specifically stated in the CAA legislation and regulations. This meant Jose’s CAA application could not be denied on grounds not listed. Hence, argued Carlos, the overstay grounds, not being listed, could not be used to deny his claim for CAA protections.

Based on these contentions, the immigration judge was swayed to side with Fausto. He held that of the two conflicting laws, the language of the relevant provisions allowed the application of the Cuban Adjustment Act despite the Visa Waiver Program limitations.

In other words, the Cuban Adjustment Act trumps the Visa Waiver Program.

At trial, the judge took testimony, reviewed evidence, and ruled that Fausto qualified in all respects under the Cuban Adjustment of Act and granted him relief from deportation.

Five years after earning valid green card status, Fausto became a naturalized U.S. citizen. Today, he owns a home in San Marcos, California and works as an accountant and bookkeeper for small businesses.

This article, centered on deportation defense and permanent residency issues, is part six of a series on the successes of immigration lawyer Carlos Batara in different types of cases.

Follow the link below to read more: Removing Green Card Conditions Without Spouse