Generally speaking, membership in the Communist Party is a bar to immigration in the United States. According to the Immigration and Nationality Act, 212(d)(3)(D)(i) any immigrant who is or has been a member of, or affiliated with the Communist or any other totalitarian party, is inadmissible. There are several exceptions. If the applicant can demonstrate he or she falls under one of the enumerated exceptions, he or she may still be able to immigrate. The categories of exceptions are as follows:
- Exceptions for involuntary membership
- Applicant’s membership or affiliation was involuntary
- Applicant’s membership or affiliated was terminated before reaching the age of 16
- Applicant’s membership was by operation of law
- Applicant’s membership was without awareness of the nature or the aims of the organization and was discontinued when the applicant became aware of the nature and aims
- Exceptions for Past Membership
- Applicant’s membership terminated at least 2 years before the date of applying for an immigrant visa to the United States
- Applicant’s membership is with the party controlling the government of a foreign state and such membership terminated 5 years before the date of applying for an immigrant visa to the United States
- Exceptions when membership is “not meaningful” a. There is another judicially-created exception which provides that a person will not be inadmissible if his or her membership is “not meaningful” meaning that he or she lacks “commitment” to the political and ideological convictions of communism.
- Waiver a. Even if the applicant does not meet any of the above-referenced exceptions he or she may still be eligible for a waiver of inadmissibility if a close family member of a U.S. citizen or lawful permanent resident. There is a waiver for humanitarian purposes , family unity, or when it is otherwise in the public interest.
In all of these circumstances, the applicant must establish that he or she is not a threat to the security of the United States.
The consular officers will ask about communist party membership and the applicant should be prepared for related questions during the interviews. They should be prepared to document eligibility for an exception or a waiver.
Applicants who anticipate this ground of inadmissibility may wish to retain counsel to prepare a legal brief in support of their application. They should also be prepared for possible delays while the consular officer seeks a security advisory opinion from the State Department in Washington, D.C.