Five years ago, President Bush halted those talks due to what his administration saw as Cuban noncooperation on several issues, including issuing visas to Cubans who have been approved by the U.S. side to emigrate to, or visit, the United States; access to a deepwater port for the U.S. Coast Guard (which repatriates Cuban migrants intercepted at sea); and the ability to visit repatriated Cubans to ensure they are not penalized for their attempt to leave the country.

At the time, the Bush administration announced that Cuba was not upholding its obligations under a 1994 bilateral migration accord. (Cuba maintains that the United States has not implemeted its own obligations under the accord - more on that in a moment.) Yes, you read right – we have an embargo on Cuba but we do still have serious security interests to attend, embargo or no, and migration is right at the top of the list.

During the hot summer of 1994, as the Cuban economy was reeling from the disappearance of its crucial trading partner, the Soviet Union, tens of thousands of Cubans got on anything that would float and headed for the United States. Fearful of how this Cuban migrant crisis was overwhelming Florida’s resources with costly intake and resettlement assistance (not to mention the impression on local job markets), then-Governor Lawton Chiles urged the Clinton administration to help end the crisis. Recalling the 120,000 Cubans Florida was forced to absorb during the 1980 Mariel boatlift, Chiles commented, “The only thing I can tell you is if there were 30,000 more rafters in Florida, I'd hate to be me running for office.”

So, the two countries met and signed an agreement. In essence, both Cuba and the United States agreed to work for “safe, legal and orderly migration.” Cuba agreed to discourage illegal migration, and to let U.S. diplomats visit repatriated migrants, and the United States agreed to issue 20,000 immigrant visas to Cubans annually.

The accord went on to say this: “The United States has discontinued its practice of granting parole to all Cuban migrants who reach U.S. territory in irregular ways.” This became known as the "wet foot-dry foot" policy; Cubans who successfully reached land could stay and apply for permanent residency.

In fact, the U.S. never stopped granting parole to all Cuban migrants who reach U.S. territory in irregular (illegal) ways; it merely stopped transporting them to the United States when found at sea. Big difference.

This practice of granting a temporary parole (which leaves a parolee in legal limbo) began nearly fifty years ago. At the time, Cubans who fled Fidel Castro’s new government expected to be home for Christmas. In 1966, Congress passed a law – the Cuban Refugee Adjustment Act - that would deal with the long-term legal limbo in which this first wave of Cuban refugees found themselves. That law gave the U.S. Attorney General the ability to adjust Cuban parolees’ status to permanent residency after a term of one year in the United States. Once the authority was invoked, it has never been revoked by any administration.

The Adjustment Act solved one problem, but it created a far more difficult one: it created an enormous incentive for Cubans to continue making the illegal trip, by just about any means necessary, no matter the conditions on the island. So, our adjustment policy combined with the “dry foot” policy invite Cubans to make the trip illegally, then U.S. taxpayers pick up the tab both to stop them at sea, and to resettle them when they arrive. Have I lost you yet?

So what’s a President to do? If President Obama were to announce that his administration does not see a need to automatically adjust Cuban migrants one year after their arrival – you can be certain the liberal Cuban parole policy would come to an abrupt end (the U.S. has plenty of immigrants whose status remains in limbo).

Supporters of a liberal migration policy toward Cubans insist that the U.S. must continue to give preferential treatment to Cuban migrants because they are “political exiles” who would suffer persecution if they remained or returned. But if this is the case for most Cuban migrants today, why do tens of thousands return to the island each year? We know the answer of course – to see loved ones left behind.

But if Cuban migrants aren’t persecuted when they return for family visits, why did the Bush administration curtail those visits? Marco Rubio, a Florida legislator who supported tighter restrictions on family visits – and has launched a long shot bid for that state’s open Senate seat in 2010 – will be the first to tell you he was deeply worried that Cubans could lose their privileged treatment in the U.S. immigration system. “What makes Cubans different than Haitians who come here or anyone else . . . if they go back and forth [on yearly family visits], that is to say, if they’re not exiles at all?” Rubio mused last year. The whole structure would have unraveled had something [President Bush’s stricter regulation on family visits in 2004] not been done.”

As our two governments gingerly reopen a modest dialogue on migration – the next such meeting is expected in Havana this December – the gap widens between the long-outdated basis for our policy and its adherence to reality.