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Memo Regarding Party Members in China Applying for Immigration Visas
According to Act 22 (a) (3) (D)Clause (i) of the Immigration and Nationality Act, “In general.Any Immigrant who is or has been a member of or affiliated(1) with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible” and thus is not able to receive an Immigration Visa
All non-immigration visa applicants are not subject to theprovisions of INA 212(a) (3) (D).(2)
I. Specific Situations
A. Service in Armed Forces.
“Service, whether voluntary or not, in thearmed forces of any country shall not be regarded, of itself, asconstituting or establishing an alien's membership in, or affiliation with,any proscribed party or organization, and shall not, of itself, constitute aground of ineligibility to receive a visa.”(3)“However, continuing service and/or promotion to a higher rank, e.g., the officer corps, could result in the alien’s serving in a political capacity which would be cause for a finding of inadmissibility under INA 212(a)(3)(D).”(4)
B. Responsible Position with CommunistGovernment Generally Constitutes Affiliation
“Employment in a responsible position in thegovernment of a communist or communist-controlled country generallyconstitutes grounds for a finding of inadmissibility under INA 212(a) (3) (D).This presupposition of inadmissibility, however, may be rebutted by thepresentation of credible evidence that would bring the case within theexceptions”(5) discussed in part II.
“Rank-and-file government workers in communist and communist-controlledcountries, including those employed in the information media, are notpresupposed to be inadmissible under INA 212(a)(3)(D). Their cases shouldbe evaluated on the same basis as all other immigrant visa applicants.”(6)
“One criterion for determining the nature of an alien’s position is the type of passport he or she holds. Possession of a diplomatic, special, or servicepassport issued by a communist or communist-controlled country, while not conclusive, raises the probability of communist membership or affiliation and should be the subject of further inquiry and/or investigation.”(7)
C. Voluntary Service in a Political Capacity.
“Voluntary service in a politicalcapacity shall constitute affiliation with the political party or organizationin power at the time of such service.”(8)
A. Exception 1: for involuntary membership.
The general clause“shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation:
1. is or was involuntary;
2. is or was solely when under 16 years of age, by operation of law(9); or
3. for purposes of obtaining employment(10), food rations, or other essentials of living and whether necessary for such purposes.”(11)
“If the alien continues or continuedmembership in or affiliation with a proscribed organization on or afterreaching 16 years of age, only the alien's activities after reaching thatage shall be pertinent to a determination of whether the continuation ofmembership or affiliation is or was voluntary.”(12)
“An alien whose membership was nominal and who does not appear to havesubscribed to communist ideology may be considered to fall within the purview of INA 212(a) (3) (D)(ii) if he or she joined for one or more of the following reasons:
(1) Membership was a prerequisite for admission to a university or other advanced school; or
(2) Although membership was not a prerequisite for admission to a university or other advanced school, membership was necessary for the alien to continue his or her studies; or
(3) Membership was necessary to obtain academic benefits such as scholarships, dormitory accommodations, food rations, reduced transportation fares, etc.”
B.Exception 2: for past membership.
“The general clause“shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that:”
1.“The membership or affiliation terminated at least:
(i) 2 years before the date of such application, or
(ii) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date; and
2. The alien is not a threat to the security of the United States.”
“If an alien admits a past membership or affiliation but asserts credibly that the membership or affiliation was terminated two (or in some cases, five) or more years ago,”the consular officer“should accept the assertion at face value.”The consular officer “should reject the alien’s assertion only if the officer has controverting evidence or has another articulable reason for doing so.”(13)
C. Exception 3: for close family members.
“The Attorney General may, in the Attorney General's discretion, waive the application of clause (i) in the case of an immigrant who is:
(1) The parent, spouse, son, daughter, brother, or sister of a citizen of the United States or;
(2) A spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.”(14)
Waiver of ineligibility—212(a)(3)(D)(iv). lf an immigrant visa applicantis ineligible under INA 212(a)(3)(D) but is qualified to seek the benefits ofINA 212(a)(3)(D)(iv), the consular officer shall inform the alien of theprocedure for applying to DHS for relief under that provision of law. Avisa may not be issued to the alien until the consular officer has receivednotification from DHS of the approval of the alien's application under INA212(a)(3)(D)(iv).
Exception 1 and Exception 2 are under the discretion of consular officers and there is no further application besides providing evidence during interview with the consular officer. The consular officer will determine whether the applicant is qualified for Exception 1 (aka 212(a)(3)(D)(ii)) or Exception 2 (aka 212(a)(3)(D)(iii)) and thus is admissible when the applicant falls under the INA 212 (a) (3) (D) category.
Exception 3 is under the jurisdiction of DHS (Department of Homeland Security) instead of the consular officer and the exception need to be filed with Form I-601, Application for Waiver of Grounds of Inadmissibility. The consular officer will deny the immigration visa application if the applicant falls under the INA 212 (a) (3) (D) category, is not qualified for Exception 1 and 2, but qualified for Exception 3 without an approved I-601 form from DHS. However, the consular officer will instruct the applicant to file I-601 and forward the case to DHS after denying the visa application. (15)
If you are looking for more information regarding the inadmissibility waiver, please visit http://www.state.gov/documents/organization/86933.pdf
(2)9 Foreign Affairs Manual§ 40.34 N3
(3)22 C.F.R.§40.34 (b)
(4)9 Foreign Affairs Manual§ 40.34 N3.6
(5)9 Foreign Affairs Manual§ 40.34 N3.5-1
(8)22 C.F.R. § 40.34 (c)
(9) “The term operation of law, as used in INA 212(a) (3) (D), includes any case wherein the alien automatically, and without personal acquiescence, became a member of or affiliated with a proscribed party or organization by official act, proclamation, order, edict, or decree.” 22 CFR §40.34(e)
(10) “Aliens who joined communist organizations solely for the purpose of obtaining, retaining, changing, or advancing in employment commensurate with their educational background and experience, whose memberships were nominal, and who do not appear to have subscribed to communist ideology, may be considered to be within the purview of INA 212(a)(3)(D)(ii).” 9 FAM §40.34 N6.4-2
(12) 22 CFR §40.34(d)
(15)9 FAM 40.34 PN3.2
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