U.S. Citizenship and Immigration Services (USCIS) has added a new section to its Policy Manual directing immigration officers to strictly enforce existing law on the inadmissibility of any intending immigrant who is a member or affiliate of the Communist Party or any other totalitarian party (or subdivision or affiliate), domestic or foreign, unless otherwise exempt.
The new guidance provides step-by-step instructions for officers making inadmissibility determinations on this basis. According to anecdotal reports, this and other anti-China actions by the Trump administration are affecting Chinese immigrants especially, who are experiencing an uptick in visa denials at U.S. consulates and by USCIS for the I-485 adjustment of status applications. Many millions of Chinese are nominally members of the Communist Party, and the crackdown could have the effect of banning even low-level members whose party membership is in name only.
WR reported an increase in scrutiny by U.S. consulates on this issue as early as 2018, primarily for Chinese and Vietnamese visa issuances and adjustment-of-status applications. More recently, reports from China indicate that the U.S. Consulate General in Guangzhou increased immigrant visa denials related to membership in the Chinese Communist Party, despite the fact that such membership is required and involuntary for most to advance in university, business, or employment.
It’s important to note that there are exceptions to the inadmissibility law. For example:
- A mere intellectual interest in, sympathy for, or favoring the ideologies of the Communist or other totalitarian party does not constitute affiliation with such an organization unless accompanied by some positive and voluntary action that provides support, money, or another thing of value.
- There is an exception for past membership. In such cases, the visa applicant must demonstrate to the satisfaction of the consular officer or I-485 adjudicator that his/her membership or affiliation ended at least 2 or 5 years before the date of applying for a visa (if the alien’s membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, the alien must establish that his or her membership or affiliation terminated at least 5 years before the date of receipt), and that the applicant is not a threat to the security of the United States.
- There are exceptions for non-voluntary or non-meaningful membership. For example, membership or affiliation may be deemed involuntary if it was involuntary or was solely when under 16 years of age, by operation of law, or necessary for purposes of obtaining employment, food rations, or other essentials of living. Membership/affiliation is non-meaningful if it was wholly devoid of any political implications.
- A limited waiver is available for immigrant parents, spouses, children, or siblings of U.S. citizens or permanent residents for humanitarian purposes or in the public interest. This waiver is not available for nonimmigrant visa applicants. If one spouse is a party member, it may be advisable to have the non-party member spouse apply as the principal applicant.
- Never withhold information about one’s membership in the Communist Party. A visa applicant may be found inadmissible if he or she obtains an immigration benefit through fraud or willful misrepresentation.
- Verifying evidence is critical. A visa applicant must provide evidence to verify claims related to Communist Party membership. Such evidence could include expert advisory opinions, comparison of payroll records for employees who are members and for those who are not, personal declarations, and supporting letters from family or colleagues.
- Retaining an experience immigration attorney who can draft a compelling legal brief for the visa applicant to provide the U.S. consulate is key. It’s critical to do this before submitting a response to the consulate. Additionally, because the U.S. consulate will seek a security advisory opinion from the Department of State before issuing a visa, applicants must be prepared for delays, which could be exacerbated by the new guidance.
Wolfsdorf Rosenthal LLP attorneys have had numerous successes preparing legal briefs to rebut claims of inadmissibility. Our firm has also obtained waivers for immigrant visa applications by filing a Form I-601, Application for Waiver of Ground of Inadmissibility with USCIS, after a determination of inadmissibility has been made.
Contact your WR attorney for advice in specific situations.
- USCIS alert, https://www.uscis.gov/news/alerts/uscis-issues-policy-guidance-regarding-inadmissibility-based-on-membership-in-a-totalitarian-party
- “Experts Weigh Impact of U.S. Immigration Ban on Chinese Communists,” Voice of America News, https://www.voanews.com/usa/experts-weigh-impact-us-immigration-ban-chinese-communists
- “Ten Things to Know About Communist Party Membership Inadmissibility,” Wolfsdorf Rosenthal, https://wolfsdorf.com/ten-things-know-communist-party-membership-inadmissibility/
“Visa Denials Based on Communist Party Membership,” Wolfsdorf Rosenthal, https://wolfsdorf.com/visa-denials-based-on-communist-party-membership/