By: Bernard Wolfsdorf and Joseph Barnett
Communist party membership issues are becoming more common in visa cases. Our firm has seen an increase in scrutiny by U.S. consulates on this issue. It is important to focus on this issue with China as #1, and Vietnam as #2, in the number of EB-5 immigrant visas issued and adjustment of status applications approved in Fiscal Year 2017. Immigration attorneys, Regional Centers, migration agencies, and intending immigrants must understand the rules, exceptions, and waivers to this ground of inadmissibility. Here are 10 things to know about this topic:
- The Immigration and Nationality Act. Individuals who are inadmissible are not permitted by law to enter or remain in the United States. The Immigration and Nationality Act sets forth grounds for inadmissibility in Section 212. One of grounds, found at INA Section 212(a)(3)(D), is “membership in a totalitarian party,” which states: “Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.”
- Definition of “Affiliate”. The term affiliate, as used in INA Section 212(a)(3)(D), means “an organization related to, or identified with, a proscribed party or association, including any section, subsidiary, branch, or subdivision thereof, in such close association as to evidence to or furtherance of the purposes and objectives of such association or party, or to indicate a working alliance to bring the purposes and objectives of such association or party.” Note, 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. This can be an issue for organizations or companies that are owned or controlled by the People’s Republic of China or a Chinese government municipality, such as media organizations, energy/utility companies, trade unions, and minor political parties.
- Exception for Past Membership. The INA provides an exception to this ground of inadmissibility, for those whose membership or affiliation with the Communist party or any other totalitarian party (or subdivision or affiliate thereof) is in the past. A Chinese or Vietnamese visa applicant must demonstrate to the satisfaction of the consular officer that his/her membership or affiliation ended at least 5 years before the date of applying for a visa, and that the applicant is not a threat to the security of the United States. In many cases, membership dues to the Chinese Communist Party (“CCP”) are paid directly by a visa applicant’s employer, which can further complicate the ability to withdraw as a member. See 9 FAM 302.5-6(B)(5).
- Non-Voluntary Membership. The INA provides an explicit exception membership or affiliation with the Communist Party, if the visa applicant establishes that such membership or affiliation “is or was involuntary or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.” See INA Section 212(a)(3)(D)(ii). This includes when membership is a requirement for admission to a university, or to continue studies, or to obtain other academic benefits. Additionally, this exception includes those who join the Communist Party solely for the purpose of obtaining, retaining, or advancing one’s career, as long as it can be demonstrated that the visa applicant has not “subscribed to communist ideology.”
- Non-Meaningful Membership. It is also possible to find relief from inadmissibility for membership in, or affiliation with, the Communist Party, if such membership or affiliation is “non-meaningful.” S. Supreme Court case law indicates that membership is “non-meaningful” if the visa applicant “when the dominating impulse to the affiliation was wholly devoid of any political implications,” or when participation in the membership would not “substantially support the inference of awareness of the political aspects of the organization.”
- Waiver. There is a limited waiver to this ground of inadmissibility, for immigrant aliens who are “the parent, spouse, son, daughter, brother, or sister of a U.S. citizen, or the spouse, son, or daughter of a lawful permanent resident, 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. See INA Section 212(a)(3)(D)(iv). The waiver application is submitted directly with USCIS through a Form I-601, Application for Waiver of Ground of Inadmissibility. There are no waivers 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. This is because obtaining a waiver of inadmissibility requires the inadmissible applicant to have a close “nuclear” family relationship to a U.S. citizen or permanent resident.
- DS-260 v. Form I-485. After an employment-based application (like a Form I-526 or Form I-140) is approved by USCIS, a national outside the United States must apply for an immigrant visa by completing a DS-260 The DS-260 asks: “Are you a member of or an affiliate with the Communist of other totalitarian party.” This is a question on current membership. On the other hand, the Form I-485 Application to Register Permanent Residence or Adjust Status asks: “Have you EVER been a member of, or in any way affiliated with, the Communist Party or any other totalitarian party (in the United States or abroad)?” This questions both current and past membership. The U.S. government will not rely solely on the visa application or the applicant’s statements to make a determination of inadmissibility; instead, it will review evidence available on the Consular Lookout and Support System (CLASS), or Independent Name Check (INC), or any other outside information available.
- Never Lie. It is never a good idea to withhold information about one’s membership in the Communist Party. Consular officers in communist countries are very knowledgeable and will often make assumptions based on the sensitive or senior position held in the military or other areas that may connotate party membership. A visa applicant may be found inadmissible if he/she obtains an immigration benefit through fraud or willful misrepresentation. See INA 212(a)(6)(C)(i). More importantly, a finding of misrepresentation or fraud can result in a lifetime bar to entering the United
- Proving a Negative. For visa applicants who have previously been employed in senior positions in certain industries (such as media), the U.S. consulate may ask how the applicant was able to obtain such a position without being a member of the Communist Party. In practice, this requires a visa applicant to prove a negative – that, despite his/her job, he/she is not a member of the Communist Party.
- Verifying Evidence is Critical. A visa applicant must provide evidence to verify claims related to Communist Party membership. This could be in the form of 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. Additionally, because the U.S. Consulate will seek a security advisory opinion from the Department of State in Washington D.C. prior to issuing a visa, applicants must be prepared for delays.
