Important Updates
Important Updates
January 8, 2026 | TaiwanTaiwan: Digital Nomad Visa Introduced
January 8, 2026 | United StatesLexology Pro: H-1B Programme Braces for New Rules and Uncertainty in 2026
January 8, 2026 | 🌐Minimum Salary Changes Announced
January 8, 2026 | OmanOman: Job Code Updates and Education Certificate Requirements
January 8, 2026 | Saudi ArabiaSaudi Arabia: New Saudization Requirement Announced for Sports Sector and Housing Supervisors
January 8, 2026 | TaiwanTaiwan: Digital Nomad Visa Introduced
January 8, 2026 | United StatesLexology Pro: H-1B Programme Braces for New Rules and Uncertainty in 2026
January 8, 2026 | 🌐Minimum Salary Changes Announced
January 8, 2026 | OmanOman: Job Code Updates and Education Certificate Requirements
January 8, 2026 | Saudi ArabiaSaudi Arabia: New Saudization Requirement Announced for Sports Sector and Housing Supervisors
January 8, 2026 | TaiwanTaiwan: Digital Nomad Visa Introduced
Subscribe
Fragomen.com home
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
Search Fragomen.com
  • Our Services
    For EmployersFor IndividualsBy IndustryCase Studies
  • Our Tech & Innovation
  • Our People
  • Our Insights
    Worldwide Immigration Trends ReportsMagellan SeriesImmigration AlertsEventsMedia MentionsFragomen NewsBlogsPodcasts & Videos
  • Spotlights
    Navigating Immigration Under the Second Trump AdministrationFragomen Consulting EuropeImmigration Matters: Your U.S. Compliance RoadmapCenter for Strategy and Applied InsightsVietnamese ImmigrationView More
  • About Us
    About FragomenOfficesResponsible Business PracticesFirm GovernanceRecognition

Our Services

  • For Employers
  • For Individuals
  • By Industry
  • Case Studies

Our Tech & Innovation

  • Our Approach

Our People

  • Overview / Directory

Our Insights

  • Worldwide Immigration Trends Reports
  • Magellan Series
  • Immigration Alerts
  • Events
  • Media Mentions
  • Fragomen News
  • Blogs
  • Podcasts & Videos

Spotlights

  • Navigating Immigration Under the Second Trump Administration
  • Fragomen Consulting Europe
  • Immigration Matters: Your U.S. Compliance Roadmap
  • Center for Strategy and Applied Insights
  • Vietnamese Immigration
  • View More

About Us

  • About Fragomen
  • Offices
  • Responsible Business Practices
  • Firm Governance
  • Recognition
Select Language
  • English
  • French
  • French - Canadian
  • German

Select Language

  • English
  • French
  • French - Canadian
  • German
ContactCareersMediaClient Portal
  • Insights

Communist Party Member Considerations for EB-5s

June 14, 2016

Chad Ellsworth

Countries / Territories

  • ChinaChina
  • United StatesUnited States
  • VietnamVietnam

Related contacts

Chad Blocker

Chad Ellsworth

Partner

San Francisco, CA, United States

Email

[email protected]

T:+1 212 230 2826

Related offices

  • Beijing
  • New York, NY
  • Shanghai

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related contacts

Chad Blocker

Chad Ellsworth

Partner

San Francisco, CA, United States

Email

[email protected]

T:+1 212 230 2826

Related offices

  • Beijing
  • New York, NY
  • Shanghai

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related contacts

Chad Blocker

Chad Ellsworth

Partner

San Francisco, CA, United States

Email

[email protected]

T:+1 212 230 2826

Related offices

  • Beijing
  • New York, NY
  • Shanghai

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

By: Chad Ellsworth

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.

 

Countries / Territories

  • ChinaChina
  • United StatesUnited States
  • VietnamVietnam

Related contacts

Chad Blocker

Chad Ellsworth

Partner

San Francisco, CA, United States

Email

[email protected]

T:+1 212 230 2826

Related offices

  • Beijing
  • New York, NY
  • Shanghai

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related contacts

Chad Blocker

Chad Ellsworth

Partner

San Francisco, CA, United States

Email

[email protected]

T:+1 212 230 2826

Related offices

  • Beijing
  • New York, NY
  • Shanghai

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Related contacts

Chad Blocker

Chad Ellsworth

Partner

San Francisco, CA, United States

Email

[email protected]

T:+1 212 230 2826

Related offices

  • Beijing
  • New York, NY
  • Shanghai

Share

  • Twitter
  • Facebook
  • LinkedIn

Share

  • Twitter
  • Facebook
  • LinkedIn

Explore more at Fragomen

Media mentions

Lexology Pro: H-1B Programme Braces for New Rules and Uncertainty in 2026

Partner K. Edward Raleigh highlights how recent H-1B changes are shaping employer compliance strategies.

Learn more

Media mentions

The Irish Times: Number of Work Permits Issued Last Year Drops by Almost a Quarter

Practice Leader Colm Collins explains that processing delays, shifting demand in information and communication technology (ICT) and renewal cycles contributed to last year’s drop in work permit approvals.

Learn more

Media mentions

Canadian Lawyer Magazine: Canada's Immigration System Is Reaching a Breaking Point: Canadian Immigration Lawyers Association

Partner Rick Lamanna examines current pressures on Canada’s immigration system, including processing delays, reduced admissions and policy uncertainty and the implications for applicants and employers.

Learn more

Blog post

Employer of Record and Body Leasing in Switzerland: Compliance Risks and Key Updates

Manager Mihaela Dumitru outlines how Swiss authorities assess Employer of Record and body-leasing models, highlighting key compliance risks, licensing requirements and a regulatory update affecting EU and EFTA nationals effective 1 January 2026.

Learn more
Generic Insights

Media mentions

Gazeta Prawna: Cudzoziemców też chroni konstytucja

Partner Karolina Schiffter discusses how courts in Poland are reinforcing timely processing and constitutional protections for foreigners.

Learn more

Fragomen news

2025年12月 アメリカ移民法ダイジェストLearn more

Fragomen news

Cosmina Morariu Named Managing Partner of Fragomen’s Canadian PracticeLearn more

Blog post

Ireland Employment Permits Update: 2026 Salary Threshold Changes for Graduate Hiring

Immigration Manager Alice Heron examines Ireland’s updated employment permit salary thresholds taking effect in March 2026, including the reintroduction of graduate-specific Minimum Annual Remuneration bands and what these changes mean for employers planning graduate recruitment in 2026 and 2027.

Learn more

Fragomen news

Fragomen Announces 2026 Partner Class and Counsel ElevationsLearn more

Media mentions

Bloomberg Law: New H-1B Rule Pushes Employers to Rethink Workforce Options

Partner Jill Bloom explains how the new wage-based H-1B selection rule may influence hiring decisions and prompt employers to reassess workforce planning and explore alternative visa options.

Learn more

Media mentions

Business Insider: Immigration Lawyers Say the H-1B Chaos Is Forcing Tough Business Calls

Partner K. Edward Raleigh discusses how companies are rethinking their H-1B strategies amid evolving policies.

Learn more

Awards

Mitch Wexler Named 2025 Top 25 Immigration Attorney by EB5 Investors Magazine

Senior Counsel Mitch Wexler is recognized by EB5 Investors Magazine as a 2025 Top 25 award recipient, reflecting leadership and long-standing impact in the global investment immigration space.

Learn more

Media mentions

Lexology Pro: H-1B Programme Braces for New Rules and Uncertainty in 2026

Partner K. Edward Raleigh highlights how recent H-1B changes are shaping employer compliance strategies.

Learn more

Media mentions

The Irish Times: Number of Work Permits Issued Last Year Drops by Almost a Quarter

Practice Leader Colm Collins explains that processing delays, shifting demand in information and communication technology (ICT) and renewal cycles contributed to last year’s drop in work permit approvals.

Learn more

Media mentions

Canadian Lawyer Magazine: Canada's Immigration System Is Reaching a Breaking Point: Canadian Immigration Lawyers Association

Partner Rick Lamanna examines current pressures on Canada’s immigration system, including processing delays, reduced admissions and policy uncertainty and the implications for applicants and employers.

Learn more

Blog post

Employer of Record and Body Leasing in Switzerland: Compliance Risks and Key Updates

Manager Mihaela Dumitru outlines how Swiss authorities assess Employer of Record and body-leasing models, highlighting key compliance risks, licensing requirements and a regulatory update affecting EU and EFTA nationals effective 1 January 2026.

Learn more
Generic Insights

Media mentions

Gazeta Prawna: Cudzoziemców też chroni konstytucja

Partner Karolina Schiffter discusses how courts in Poland are reinforcing timely processing and constitutional protections for foreigners.

Learn more

Fragomen news

2025年12月 アメリカ移民法ダイジェストLearn more

Fragomen news

Cosmina Morariu Named Managing Partner of Fragomen’s Canadian PracticeLearn more

Blog post

Ireland Employment Permits Update: 2026 Salary Threshold Changes for Graduate Hiring

Immigration Manager Alice Heron examines Ireland’s updated employment permit salary thresholds taking effect in March 2026, including the reintroduction of graduate-specific Minimum Annual Remuneration bands and what these changes mean for employers planning graduate recruitment in 2026 and 2027.

Learn more

Fragomen news

Fragomen Announces 2026 Partner Class and Counsel ElevationsLearn more

Media mentions

Bloomberg Law: New H-1B Rule Pushes Employers to Rethink Workforce Options

Partner Jill Bloom explains how the new wage-based H-1B selection rule may influence hiring decisions and prompt employers to reassess workforce planning and explore alternative visa options.

Learn more

Media mentions

Business Insider: Immigration Lawyers Say the H-1B Chaos Is Forcing Tough Business Calls

Partner K. Edward Raleigh discusses how companies are rethinking their H-1B strategies amid evolving policies.

Learn more

Awards

Mitch Wexler Named 2025 Top 25 Immigration Attorney by EB5 Investors Magazine

Senior Counsel Mitch Wexler is recognized by EB5 Investors Magazine as a 2025 Top 25 award recipient, reflecting leadership and long-standing impact in the global investment immigration space.

Learn more

Stay in touch

Subscribe to receive our latest immigration alerts

Subscribe

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Our firm

  • About
  • Careers
  • Firm Governance
  • Media Inquiries
  • Recognition

Information

  • Attorney Advertising
  • Legal Notices
  • Privacy Policies
  • UK Regulatory Requirements

Have a question?

Contact Us
  • LinkedIn
  • Youtube
  • Instagram
  • Facebook
  • Twitter

© 2026 Fragomen, Del Rey, Bernsen & Loewy, LLP, Fragomen Global LLP and affiliates. All Rights Reserved.

Please note that the content made available on this site is not intended for visitors / customers located in the province of Quebec, and the information provided is not applicable to the Quebec market. To access relevant information that applies to the Quebec market, please click here.