BY: ALI BRODIE
A question relating to membership in the Communist Party (or other Totalitarian Party) appears in a number of U.S. immigration applications. Specifically, it is addressed at the immigrant visa / adjustment of status stage through Forms DS-230 and I-485, and again at the naturalization stage through Form N-400. The question is particularly challenging for EB-5 immigrants from countries controlled by the Communist Party.
Generally, membership in the Communist Party is a bar to immigration to the United States. According to the Immigration and Nationality Act (INA) §212(a)(3)(D)(i), any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party, domestic or foreign, is inadmissible. There are several exceptions and it is the applicant’s burden of proof to establish that he or she falls under one of the enumerated exceptions.
INA §212(a)(3)(D) provides a number of exceptions:
- Exceptions for Involuntary Membership:
- The applicant’s membership or affiliation was involuntary;
- The applicant’s membership was terminated before applicant attained the age of 16;
- The applicant’s membership or affiliation was by operation of law;
- The applicant’s membership or affiliation was necessary for purposes of obtaining employment, food rations, or other essentials of living;
- The applicant’s membership or affiliation was without awareness of the nature or the aims of the organization, and was discontinued when the applicant became aware of the nature and the aims of the organization.
- Exceptions for Past Membership:
- The applicant’s membership or affiliation terminated at least 2 years before the date of applying for an immigrant visa to the United States;
- The applicant’s membership or affiliation with the party controlling the government of a foreign state, and such membership or affiliation terminated 5 years before the date of applying for an immigrant visa to the United States.
There is also a judicially-created rule relating to ‘non meaningful association.’ The landmark U.S. Supreme Court case Rowoldt v. Perfetto, 355 U.S. 115 (U.S. 1957) established an exception to inadmissibility in instances where the applicant lacks a commitment to the political or ideological convictions of the Communist regime. The court held that an alien’s connection to the Communist Party must constitute a meaningful association and that Communist Party membership is not present when the affiliation is without any political implications.
If the applicant does not meet any of the exceptions or judicially created rule, they may still be eligible for an exception which is exclusively available to close family members of a U.S. citizen or Lawful Permanent Resident. Specifically, the INA 212(a)(3)(D)(iv) provides for these exceptions in the form of a waiver for humanitarian purposes, family unity, or when it is otherwise in the public interest. In all cases, it must be established to the satisfaction of the U.S. government that the immigrant is not a threat to the security of the United States.
In practice, we see many clients from China and Vietnam encounter this challenge relating to Communist Party membership or affiliation during their Immigrant Visa Processing based on an approved I-526, Immigrant Petition by Alien Entrepreneur. In addition to the exceptions highlighted above, it is worth noting that if an alien admits to past membership or affiliation, but asserts credibly that the membership or affiliation was terminated (two or five years ago, depending), the adjudicating officer should accept the assertion at face value, unless the officer has contradicting evidence or another reason to reject it. 9 FAM 40.34 N.4.2. Therefore, mere termination of membership or affiliation for the requisite time period should suffice. 9 FAM 4.034 N.4.1.