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General Immigration Bar Against Communist Party Members

While the Cold War has ended, the U.S. Immigration and Nationality Act (INA) §212 (a)(3)(D)(i) still restricts Communist Party members from immigrating to the United States. This INA restriction may affect Chinese and Vietnamese EB-5 investors who are or may have been Communist members or affiliated with a Communist Party.

The three main immigration forms that ask about Communist Party membership and affiliation are Form DS-260 for immigrant consular processing, Form I-485 for adjustment of status to obtain a green card, and Form N-400 for naturalization to become a U.S. citizen.

What do Consular Officers Consider?

A consular officer determines whether an applicant is or was a member or affiliate of the Communist Party for consular processing abroad. To make a determination, the consular officer will generally review the applicant’s visa application, the applicant’s statements, name change results, consular post files, and any other available outside information.

U.S. Department of State’s Security Advisory Opinion (SAO)

If there are any discrepancies between the record and the applicant’s statements, the consular officer will try to resolve the factual issue locally. But if questions can’t be answered at the local consular post, then the officer will send a request to the U.S. Department of State in Washington D.C. for a Security Advisory Opinion (SAO), commonly known as a security clearance. The SAO will contain the consular officer’s opinion on whether the applicant’s membership is meaningful or non-meaningful and any points to support that position.

The Department’s SAO is required prior to visa issuance to any Communist membership case where:

  • The consular officer has information indicating that the claimed termination of membership did not occur;
  • The consular officer has reason to believe the applicant may be a threat to U.S. security; or
  • The applicant denies any membership or affiliation at any time, but at the same time asserts that, at a minimum, there has been no such membership or affiliation within the past two or five year period.
 
The consular officer must also request an SAO in all cases involving claimed non-meaningful or non-voluntary membership by Chinese and Vietnamese nationals, who are or were members of the Communist Party in the past five years. Once an SAO has been requested, no immigrant visa may be issued until the Department’s response has been received which can take several weeks to months.
 
Exceptions to the General Immigration Bar
 
While the past or current membership in a Communist Party is a bar to immigration to the U.S., there are several INA §212(a)(3)(D)(ii) exceptions to the general rule, including those listed below:
  • 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, education, 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.
 
Past membership in a Communist Party can also be waived if the applicant can prove that:
  • Membership or affiliation with the Communist Party was terminated two years before the date of the visa application; or
  • Membership or affiliation with the Communist Party controlling the government of a foreign state was terminated five years before the date of the visa application.
 
Further, even if none of these exceptions are applicable, an immigrant visa applicant may still be able to immigrate under humanitarian grounds if they possess the requisite qualifying family ties to a U.S. citizen or U.S. lawful permanent resident.
 
Generally, most Chinese and Vietnamese EB-5 investors are not affected by the immigration bar against Communist Party members. However, if this is a concern to you or your family members, please contact your Fragomen professional to discuss potential options.