Section 212(a)(3)(D) of the Immigration and Nationality Act (INA) deems inadmissible to the U.S. any intending immigrant who is or has been affiliated with a communist party, or any other totalitarian party, or any subdivision or affiliate of such party. Accordingly, intending immigrants with such a background are ineligible to petition for an adjustment of status and likewise are not permitted to receive an immigrant visa through consular processing.
However, this exclusion does not apply to non-immigrant visas, and both the INA and the State Foreign Affairs Manual (FAM) published by the U.S. State Department (DOS) provide several measures of relief for intending immigrants found inadmissible to the U.S. on the basis of their membership to or association with a communist or totalitarian organization.
In fact, not all current or former members of a communist party or other totalitarian party are inadmissible to the U.S. We’ve included below various reasons for inadmissibility, exceptions to argue in order to be considered for admission, and measures of relief for communist party members who wish to immigrate on a permanent basis to the U.S.
Specific Situations Regarding Communist Party Membership
Rank-and-file members of the armed forces of a communist or other totalitarian country are not designated inadmissible to the U.S. on the basis of their service alone. According to INA Section 212(a)(3)(D):
“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.”
In other words, while members of the armed forces of a communist country who have attained a high rank or other position affording them decision-making power may be found inadmissible, rank-and-file members of communist militaries, such as petty officers, are not necessarily automatically deemed inadmissible on the basis of their low-status service. Ultimately, experienced immigration attorneys can best assess your individual likelihood of being found inadmissible if you are or were a member of the armed forces of a communist country.
Position of Responsibility within Communist Governments
Immigration law singles out for inadmissibility government employees or bureaucrats of a communist regime or other totalitarian government. The underlying reason is based on their affiliation with said regime, and focuses in particular on government employees who worked in a “responsible position,” i.e. one in which they exercised power and/or participated in decision-making. Surprisingly, the INA does not explicitly define a “responsible position.” And so rank-and-file employees of communist or totalitarian governments, namely those not tasked with making or setting policy, including such individuals as members of the information media, are not subject to the bar. The INA contains a provision on how to determine a government employee’s admissibility:
“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 service passport 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.”
Thus, the U.S. Citizenship and Immigration Services (USCIS) adjudicating officer is likely to take into account the intending immigrants’ passport-type as a lens into the nature of their communist party affiliation in determining their admissibility.
Voluntary Service in a Political Capacity
The third category is not an exception, but rather an explicit provision affecting anyone who voluntarily serves in a communist or totalitarian party. Intending immigrants to whom this situation applies are generally designated inadmissible without further inquiry. According to the INA:
“Voluntary service in a political capacity shall constitute affiliation with the political party or organization in power at the time of such service.”
Individuals who actively participate in the party’s business, such as those volunteering to recruit members to the party or to spread party ideology, will be barred from mere consideration of admissibility without having first terminated their service with the party at a minimum of two, and sometimes at least five, years before applying for a visa.
If affiliation with a communist party was involuntary, then intending immigrants may not be deemed inadmissible on the basis of affiliation alone. In such a situation, an intending immigrant must establish to the satisfaction of the relevant consular officer (when applying for a visa) or to the satisfaction of the Attorney General (when applying for admission) that his or her membership or affiliation is or was one or more of the following:
The INA further describes alien applicants with only nominal communist membership who appear not to have subscribed to communist ideology as those whose membership was one of the following:
Therefore, in order to avoid or argue against blanket inadmissibility, intending immigrants who have or have had an involuntary affiliation with a communist party should explain the circumstances of their affiliation to the appropriate authority, in addition to submitting evidence to support their claims.
Aliens who terminated their communist party membership no fewer than two years before applying for an immigrant visa (or five years in the case of a totalitarian party) are not designated inadmissible on the basis of INA 212(a)(3)(D). During consular processing or when an alien applies for adjustment of status, the alien should submit evidence showing their membership was terminated for the requisite amount of time. Additionally, the alien must submit a personal statement attesting to the termination of their membership. The appropriate authority will ultimately determine if the alien is a threat to U.S. security based on their past membership. According to the INA:
“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 officer] should accept the assertion at face value” and “should reject the alien’s assertion only if the officer has controverting evidence or has another articulable reason for doing so.”
Close Family Members
Certain family members, namely spouses, parents, children, or siblings, of U.S. citizens may not be found inadmissible based on communist party membership. This exception is applied only at the discretion of the officer adjudicating the alien’s application. Additionally, the INA stipulates that the Attorney General can choose to waive inadmissibility if the family member is related to an “alien lawfully admitted for permanent residence for humanitarian purposes” and can deem the family member admissible “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.” When this situation applies, the officer is directed to inform the alien of the process of applying to the U.S. Department of Homeland Security (DHS) for relief.
According to FAM 40.34 N5, relief is available to communist party members whose membership was non-meaningful, as determined by standards set by the U.S. Supreme Court in Rowoldt v. Perfetto and Gastelum-Quinones v. Kennedy. These two cases determined that in order for an alien to be inadmissible under the INA 212(a)(3)(D) bar for communist party members, membership must have been “meaningful.” Ultimately, membership without a commitment to the political or ideological convictions of communism does not constitute meaningful membership.
That the concept of “non-meaningful” association is not a codified, but rather a judicially created, concept points to how discretionary the process of adjudicating immigration petitions is. No form or application exists for an alien to show that his or her communist party affiliation was non-meaningful. Instead, the intending immigrant should present the totality of evidence available to the relevant officer or authority explaining why their communist party membership was non-meaningful. While the burden is on intending immigrants to convincingly illustrate that membership was non-meaningful, experienced immigration attorneys can assist in this process.
Again, the exceptions described above are employed at the discretion of consular or USCIS officers. Aside from a waiver of inadmissibility in certain circumstances, there is no formal application or procedure offered to intending immigrants to demonstrate that their membership to a communist or totalitarian party should not preclude them from receiving an immigrant visa. The officer will determine whether the applicant meets the exceptions provided in the INA and FAM, and if the alien is thus admissible to the U.S.
The burden rests solely with the applicant to show that current or past membership in a communist party falls under one of the exceptions to INA 212(a)(3)(D), and experienced immigration attorneys can readily lend their expertise to this end.
In certain instances, such as for communist party members with immediate U.S. citizen relatives, Form 601, Application for Waiver of Grounds of Inadmissibility, will have to be filed with DHS in order for the alien to even be considered for eligibility for an immigrant visa. The consular or USCIS officer will deny an immigrant visa application if the applicant is inadmissible to the U.S. based on their communist party membership and does not have an approved I-601 from DHS. (However, in general, the officer will instruct the applicant to file I-601 and forward the case to DHS after denying the visa application.)
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