9 FAM 302.5
(U) Ineligibility based on National Security Grounds -
INA 212(a)(3)(A) and INA 212(a)(3)(D)
(CT:VISA-889; 07-09-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 302.5-1 (U) Statutory and
regulatory Authority
9 FAM 302.5-1(A) (U)
Immigration and Nationality Act
(CT:VISA-1; 11-18-2015)
(U) INA 101(a)(37) (8 U.S.C.
1101(a)(37)); INA 101(e)(2) (8 U.S.C. 1101(e)(2)); INA 212(a)(3)(A) (8 U.S.C.
1182(a)(3)(A)); INA 212(a)(3)(D) (8 U.S.C. 1182(a)(3)(D)); INA 221(g) (8 U.S.C.
1201(g)); INA 222(a) (8 U.S.C. 1202(a)).
9 FAM 302.5-1(B) (U) Code of
Federal Regulations
(CT:VISA-1; 11-18-2015)
(U) 22 CFR 40.34.
9 FAM 302.5-1(C) (U) Public
Laws
(CT:VISA-798; 05-16-2019)
(U) Immigration Act of 1990,
Public Law 101-649.
9 FAM 302.5-2 (U) INTENT TO
COMMIT ESPIONAGE OR SABOTAGE - INA 212(a)(3)(A)(i)(I)
9 FAM 302.5-2(A) (U) Grounds
(CT:VISA-798; 05-16-2019)
(U) INA 212(a)(3)(A)(i)(I) of the
Immigration and Nationality Act (INA) renders ineligibility any alien who the
consular or immigration officer knows or has reason to believe seeks to enter
the United States to engage solely, principally, or incidentally in any
activity which violates any United States law relating to espionage or
sabotage.
9 FAM 302.5-2(B) (U)
Application
(CT:VISA-798; 05-16-2019)
Unavailable
9 FAM 302.5-2(C) Unavailable
9 FAM 302.5-2(C)(1) Unavailable
(CT:VISA-798; 05-16-2019)
Unavailable
9 FAM 302.5-2(C)(2) (U)
Procedures
(CT:VISA-798; 05-16-2019)
Unavailable
9 FAM 302.5-2(C)(3) (U) Past
Activity
(CT:VISA-798; 05-16-2019)
Unavailable
9 FAM 302.5-2(D) (U) Waiver
9 FAM 302.5-2(D)(1) (U)
Waivers for Immigrants
(CT:VISA-798; 05-16-2019)
(U) No waiver is available for
immigrants found ineligible under INA 212(a)(3)(A)(i)(I) but the ineligibility applies only to current
circumstances. Thus, in some cases, the ineligibility may be overcome.
9 FAM 302.5-2(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-798; 05-16-2019)
(U) No waiver is available for
nonimmigrants found ineligible under INA 212(a)(3)(A)(i)(I) but the ineligibility applies only to current
circumstances. Thus, in some cases, the ineligibility may be overcome.
9 FAM 302.5-2(E) Unavailable
9 FAM 302.5-2(E)(1) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable
9 FAM 302.5-2(E)(2) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable
9 FAM 302.5-3 (U) INTENT TO
VIOLATE EXPORT CONTROL LAWS RELATED TO GOODS, TECHNOLOGY OR SENSITIVE
INFORMATION - INA 212(a)(3)(A)(i)(II)
9 FAM 302.5-3(A) (U) Grounds
(CT:VISA-798; 05-16-2019)
(U) INA 212(a)(3)(A)(i)(II)
renders ineligible any alien who the consular or immigration officer knows or
has reason to believe seeks to enter the United States to engage solely,
principally, or incidentally in any activity which violates or evades any law
prohibiting the export from the United States of goods, technology, or
sensitive information.
9 FAM 302.5-3(B) (U)
Application
9 FAM 302.5-3(B)(1) (U) In
General
(CT:VISA-798; 05-16-2019)
(U) INA 212(a)(3)(A)(i)(II) makes ineligible
an applicant who you know or have reason to believe is coming to the United
States solely, incidentally, or principally to violate or evade any law
prohibiting the export from the United States of goods, technology, or
sensitive information. (See 9 FAM
302.5-2(B) above for information about the first subcategory of (i).)
(1) Unavailable
(2) Unavailable
9 FAM 302.5-3(B)(2) Unavailable
(CT:VISA-798; 05-16-2019)
a. Unavailable
b. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4) Unavailable
c. Unavailable
d. Unavailable
e. Unavailable
f. Unavailable
g. Unavailable
(1) Unavailable
(2) Unavailable
(a) Unavailable
(b) Unavailable
(3) Unavailable
(4) Unavailable
h. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4) Unavailable
9 FAM 302.5-3(C) Unavailable
9 FAM 302.5-3(C)(1) Unavailable
(CT:VISA-798; 05-16-2019)
Unavailable
9 FAM 302.5-3(C)(2) Unavailable
(CT:VISA-798; 05-16-2019)
Unavailable
9 FAM 302.5-3(D) (U) Waivers
9 FAM 302.5-3(D)(1) (U)
Waivers for Immigrants
(CT:VISA-798; 05-16-2019)
(U) No waiver is available for
immigrants found inadmissible under INA 212(a)(3)(A)(i)(II). However, the
inadmissibility applies only to current circumstances and may be overcome.
9 FAM 302.5-3(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-798; 05-16-2019)
(U) No waiver is available for
nonimmigrants found inadmissible under INA 212(a)(3)(A)(i)(II). However, the
inadmissibility applies only to current circumstances and may be overcome.
9 FAM 302.5-3(E) Unavailable
9 FAM 302.5-3(E)(1) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable
9 FAM 302.5-3(E)(2) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable
9 FAM 302.5-4 (U) INTENT TO
COMMIT UNLAWFUL ACTivity IN THE United States - INA 212(a)(3)(A)(ii)
9 FAM 302.5-4(A) (U) Grounds
(CT:VISA-798; 05-16-2019)
(U) INA 212(a)(3)(A)(ii) makes a
visa applicant ineligible if you know or have reason to believe that the
applicant is coming to the United States solely, principally, or incidentally
to engage in "any other unlawful activity."
9 FAM 302.5-4(B) (U)
Application
9 FAM 302.5-4(B)(1) Unavailable
(CT:VISA-334; 04-13-2017)
Unavailable
9 FAM 302.5-4(B)(2) (U)
Aliens Engaging in Organized Crime
(CT:VISA-798; 05-16-2019)
a. (U) An INA 212(a)(3)(A)(ii)
visa ineligibility may arise from the fact that the applicant is a member of a
known criminal organization which includes the Chinese Triads; the Mafia; the
Yakuza; any of the various groups constituting the organized crime families of
the Former Soviet Union; any of the organized Salvadoran, Honduran, Guatemalan,
and Mexican street gangs in North America, including, but not limited to, the
Mara Salvatrucha 13 (MS-13), Mexican Mafia, SUR-13, Matidos-13, Florencia-13,
La Familia, Nortenos, Clanton-14, Center Street Locos, Diablos, South Los, La
Raza, Vatos Locos, Tortilla Flats, Latin Kings, Eastside Homeboys, Varrio
Northside, Rebels-13, Brown Pride, and 18th Street gangs; the biker gangs the
Hells Angels, Outlaws, Bandidos, and Mongols; and the transnational criminal
organization Primeiro Comando da Capital (First Capital Command). If an
active member of one of these organized crime groups applies for a visa, you
must deny the visa application under INA 221(g) and submit a request for an
advisory opinion (AO) through the IVO or NIV system to CA/VO/L/A.
b. (U) As written, INA
212(a)(3)(A)(ii) is applicable to an individual entry, although the basis for
applying INA 212(a)(3)(A)(ii) to active members of organized criminal societies
makes it a de facto permanent ground of ineligibility. The Department began
considering organized crime membership as a ground of ineligibility in 1965,
when then Attorney General Katzenbach concurred with a recommendation by
Secretary of State Rusk that an alien's membership in the Mafia was a
sufficient basis on which to find the alien ineligible under then section
212(a)(27). In 1992, the Department obtained concurrence from the INS to treat
Triad membership as a ground of ineligibility pursuant to INA
212(a)(3)(A)(ii). In 1995, this was extended with INS concurrence to organized
crime groups operating in the former Union of Soviet Socialist Republics. By
agreement with DHS in 2005, the ineligibility was extended to active members of
organized Salvadoran street gangs in North America, including, but not limited
to, the Mara Salvatrucha 13 (MS-13) and 18th Street gangs. By agreement with
DHS in 2011, the ineligibility was extended to active members of the organized
crime group known as the Yakuza, and the organized biker gangs Hells Angels,
Outlaws, Bandidos, and Mongols. In 2019, the Department and DHS agreed to
extend the ineligibility to active members of the transnational criminal
organization known as Primeiro Comando da Capital (First Capital Command).
c. (U) The basis for these
determinations was that these groups operate as permanent organized criminal
societies. Active membership in these groups could reasonably be considered to
involve a permanent association with criminal activities and, therefore, could
reasonably support a conclusion that any travel by such an alien to the United
States could result in a violation of U.S. law, whether as a principal or
incidental result of such travel. Therefore, while the ineligibility as a
matter of law related to the specific nature of the trip, the basis for making
the finding gave a reasonable basis for treating this as a blanket
ineligibility which would apply to every application for entry to the United
States.
d. (U) There are some rare
occasions where a prior finding that an alien was a member of an organized
crime group will not result in a finding of ineligibility for that alien with
respect to a specific application. For example, if the alien was entering on a
controlled basis as part of an official governmental delegation on official
business, a visa could be issued since there would be reason to believe the
alien was not going to engage, even incidentally, in violations of United
States law. Similarly, a visa could be issued if a serious medical emergency
issuance could be justified, or if the alien was coming to cooperate in a U.S.
Government investigation into criminal activities. Clear and compelling
evidence that the alien has ceased to be associated in any way with an
organized crime group (such as might be the case with Mafia members who have
cooperated with their government and testified against other members) might
also justify issuance.
e. (U) CA/VO has not developed
formal guidance on when one can issue a visa to a member of an organized
criminal group because INA 212(a)(3)(A)(ii) grounds are so compelling in such
cases that exceptions to these determinations are extremely rare. You must
consult with CA/VO/L/A on such cases and receive their concurrence that an
alien can overcome a 3A2 visa ineligibility finding before issuing a visa to an
alien with a previous INA 212(a)(3)(A)(ii) refusal.
f. Unavailable
(1) (U) Acknowledgement of
membership by the individual, the organization, or another party member;
(2) (U) Actively working to
further the organization's aims in a way to suggest close affiliation;
(3) (U) Receiving financial
support or recognition from the organization;
(4) (U) Determination of
membership by a competent court;
(5) (U) Statement from local
or U.S. law enforcement authorities that the individual is a member;
(6) (U) Frequent association
with other members;
(7) (U) Voluntarily displaying
symbols of the organization; and
(8) (U) Participating in the
organization's activities, even if lawful.
g. Unavailable
(1) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(2) Unavailable
(3) Unavailable
h. (U) Reason to Suspect Versus Reason
to Believe:
(1) (U) In General: The
"reason to suspect" standard for determining that sufficient evidence
exists to enter a P3A2 CLASS hit based on organized crime ties is a lesser
standard than the "reason to believe" standard that is needed in
order to find an alien ineligible under INA 212(a)(3)(A)(ii). The
"reasonable suspicion" standard to enter a P3A2 CLASS hit is met if
the derogatory information available would warrant further detailed inquiry
into the alien's background should he or she apply for a visa.
(2) (U) Adjudicating visa
applications of P3A2 aliens:
(a) Unavailable
(b) Unavailable
i. Unavailable
(1) Unavailable
(2) Unavailable
9 FAM 302.5-4(B)(3) (U)
Information Relating to Aliens' Organized Crime Affiliations (Formerly Russian
Business Investigation Initiative (RBII) Reports)
(CT:VISA-889; 07-09-2019)
a. (U) You must submit a
request for an AO to CA/VO/L/A for review of the application of any applicant
who is identifiable with a P3A2 CLASS entry or who you have reason to believe
may be ineligible under INA 212(a)(3)(A)(ii) based upon membership in or
extensive business relationships with an organized crime group. If you obtain
evidence of organized crime membership of an alien who holds a valid U.S. visa
and you believe that information was not available to the adjudicating consular
officer at the time of issuance, you should refer the case to your usual CA/VO/L/A
contact by email in order to determine whether sufficient evidence exists to
recommend a revocation of the aliens visa.
b. Unavailable
c. Unavailable
9 FAM 302.5-4(B)(4) (U)
Officials of Taiwan
(CT:VISA-798; 05-16-2019)
(U) Unless the alien is otherwise ineligible,
INA 212(a)(3)(A)(ii) will not apply to the President of Taiwan or any other
high-level official of Taiwan who applies to enter the United States for the
purposes of discussions with the U.S. Federal or State government concerning:
(1) (U) Trade or business with
Taiwan that will reduce the United States and/or Taiwan trade deficit;
(2) (U) Prevention of nuclear
proliferation;
(3) (U) Threats to the
national security of the United States;
(4) (U) The protection of the
global environment;
(5) (U) The protection of
endangered species; or
(6) (U) Regional humanitarian
disasters.
9 FAM 302.5-4(B)(5) (U)
National Security Entry-Exit Registration System (NSEERS)
(CT:VISA-798; 05-16-2019)
(U) The National Security
Entry-Exit Registration System (NSEERS) program required that certain
nonimmigrant aliens be fingerprinted, photographed, and registered at either
U.S. ports of entry (POE) or an Immigration and Naturalization Service or
Department of Homeland Security office in
order to provide specific information at regular intervals to ensure compliance
with visa and admission requirements. These aliens were also required to
verify their departure from the United States at the end of their authorized
stay. However, not all aliens were registered at POEs; these were so
called "call-in" registrations which applied to certain nonimmigrants
who were admitted to the United States at a time before the NSEERS program.
The NSEERS program was discontinued in 2011.
(1) Unavailable
(2) Unavailable
9 FAM 302.5-4(B)(6) Unavailable
(CT:VISA-798; 05-16-2019)
9 FAM 302.5-4(B)(7) Unavailable
(CT:VISA-798; 05-16-2019)
Unavailable
9 FAM 302.5-4(C) (U) Advisory
Opinions
(CT:VISA-798; 05-16-2019)
a. (U) For INA 212(a)(3)(A)(ii)
cases involving primarily criminal matters (e.g., organized crime and gang activities,
etc.), you must request an formal AO from CA/VO/L/A through NIV or IVO.
b. Unavailable
9 FAM 302.5-4(D) (U) Waiver
9 FAM 302.5-4(D)(1) (U)
Waivers for Immigrants
(CT:VISA-798; 05-16-2019)
(U) No waiver is available for
immigrants found ineligible under INA 212(a)(3)(A) but the ineligibility applies
only to current circumstances and thus may be overcome.
9 FAM 302.5-4(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-798; 05-16-2019)
(U) No waiver is available for
nonimmigrants found ineligible under INA 212(a)(3)(A) but the ineligibility applies
only to current circumstances and thus may be overcome.
9 FAM 302.5-4(E) Unavailable
9 FAM 302.5-4(E)(1) Unavailable
(CT:VISA-219; 10-20-2016)
Unavailable
9 FAM 302.5-4(E)(2) Unavailable
(CT:VISA-219; 10-20-2016)
Unavailable
9 FAM 302.5-5 (U) INTENT TO
OVERTHROW THE U.S. GOVERNMENT - INA 212(a)(3)(A)(iii)
9 FAM 302.5-5(A) (U) Grounds
(CT:VISA-798; 05-16-2019)
(U) INA 212(a)(3)(A)(iii) renders ineligible
any alien who the consular officer knows or has reason to believe seeks to
enter the United States to engage solely, principally, or incidentally in any
activity, a purpose of which is the opposition to, or the control or overthrow
of, the Government of the United States by force, violence, or other unlawful
means.
9 FAM 302.5-5(B) (U)
Application
(CT:VISA-798; 05-16-2019)
a. (U) INA 212(a)(3)(A)(iii)
makes a visa applicant ineligible if the applicant seeks to enter the United
States solely, principally, or incidentally to engage in any activity to
oppose, control, or overthrow the Government of the United States by force,
violence, or other unlawful means.
b. (U) The Department does not
construe this section to cover the legitimate exercise of free speech, normal
diplomatic activity, or activities related to a recognized judicial or legal
process, but rather to include sedition, treason, terrorism, and overt or
covert military operations against the Government of the United States.
c. Unavailable
9 FAM 302.5-5(C) Unavailable
9 FAM 302.5-5(C)(1) Unavailable
(CT:VISA-798; 05-16-2019)
Unavailable
9 FAM 302.5-5(C)(2) (U)
Procedures
(CT:VISA-798; 05-16-2019)
Unavailable
9 FAM 302.5-5(D) (U) Waiver
9 FAM 302.5-5(D)(1) (U)
Waivers for Immigrants
(CT:VISA-798; 05-16-2019)
(U) No waiver is available for
immigrants found ineligible under INA 212(a)(3)(A)(iii) but the applies
only to current circumstances and thus may be overcome.
9 FAM 302.5-5(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-798; 05-16-2019)
(U) No waiver is available for
nonimmigrants found ineligible under INA 212(a)(3)(A)(iii) but the ineligibility applies only to current
circumstances and thus may be overcome.
9 FAM 302.5-5(E) Unavailable
9 FAM 302.5-5(E)(1) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable
9 FAM 302.5-5(E)(2) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable
9 FAM 302.5-6 (U) IMMIGRANT
MEMBERSHIP IN TOTALITARIAN PARTY - INA 212(a)(3)(D)
9 FAM 302.5-6(A) (U) Grounds
(CT:VISA-1; 11-18-2015)
(U) INA 212(a)(3)(D) renders
ineligible any alien applying for an immigrant visa who is or has been a member
of or affiliated with the Communist or other totalitarian party.
9 FAM 302.5-6(B) (U)
Application
9 FAM 302.5-6(B)(1) (U)
Immigrants Only
(CT:VISA-219; 10-20-2016)
(U) INA 212(a)(3)(D) is a refusal
category that applies only to immigrant visa applications.
9 FAM 302.5-6(B)(2) (U) Major
Elements
(CT:VISA-798; 05-16-2019)
(U) The major elements of INA
212(a)(3)(D) are as follows:
(1) (U) Immigrant visa
applicants who are or have been members of, or are affiliated with the
Communist or any other totalitarian party, domestic or foreign, are ineligible unless
the alien is not a threat to the security of the United States and the
membership or affiliation terminated either two years before the date of visa
application, or five years before the date of visa application in the case of
an alien whose membership or affiliation was with a party controlling the
government of a foreign state that is a totalitarian dictatorship as of such
date;
(2) (U) Relief is available
for aliens whose association with a proscribed organization is or was
non-meaningful;
(3) (U) An exception is
provided for immigrants whose membership or affiliation is or was involuntary, or
under the age of 16, by operation of law, or to provide the essentials of
living; and
(4) (U) The Department of
Homeland Security (DHS) may waive ineligibility for immigrant visa applicants
who have the requisite family relationship with a U.S. citizen or permanent
resident alien for humanitarian purposes.
9 FAM 302.5-6(B)(3) (U)
Requirements for a Finding
(CT:VISA-798; 05-16-2019)
(U) In determining possible ineligible under
INA 212(a)(3)(D):
(1) (U) You should first
establish whether the immigrant alien was a member or affiliate of a proscribed
organization (see 9 FAM
302.5-6(B)(4) below);
(2) (U) If such association is
found to exist, the question of whether the membership or affiliation was
terminated at least two (or in some cases, five) years ago should be examined
(see 9
FAM 302.5-6(B)(5) below); and
(3) (U) If the membership or
affiliation continued to a point within the two or five year period will it be
necessary to consider whether the association may have been non-meaningful or
non-voluntary (see 9 FAM
302.5-6(B)(6) and 9 FAM
302.5-6(B)(7) below), or whether the alien is entitled to seek an
individual waiver under INA 212(a)(3)(D)(iv) (see 9 FAM
302.5-6(D)(1) below).
9 FAM 302.5-6(B)(4) (U)
Immigrant Members or Affiliates of Proscribed Organizations Ineligible
(CT:VISA-798; 05-16-2019)
a. (U) In General: An
immigrant visa applicant 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 ineligible under INA 212(a)(3)(D) unless
qualifying for one of the exceptions described in 9 FAM
302.5-6(B)(5) below. Nonimmigrants are not subject to the provisions of
INA 212(a)(3)(D).
b. (U) Proscribed Organizations:
The term proscribed organization means any group that falls within the
purview of INA 212(a)(3)(D).
c. (U) Application To Non-Communist
Totalitarian Parties: INA 101(a)(37) defines totalitarian party as,
"an organization which advocates the establishment in the United States of
a totalitarian dictatorship or totalitarianism. The terms 'totalitarian
dictatorship' and 'totalitarianism' mean and refer to systems of government not
representative in fact, characterized by (A) the existence of a single
political partly, organized on a dictatorial basis, with so close an identity
between such party and its policies and the governmental policies of the
country in which it exists, that the party and the government constitute and
indistinguishable unit, and (B) the forcible suppression of opposition to such
party." As indicated in 22 CFR 40.34(f), a former or present voluntary
member of, or an alien who was, or is voluntarily affiliated with a noncommunist
party, organization, or group, or any section, subsidiary, branch, affiliate,
or subdivision thereof, during the time of existence in which the totalitarian
party did not or does not advocate the establishment of totalitarian
dictatorship in the United States, is not considered ineligible under INA
212(a)(3)(D) to receive a visa.
d. (U) Adjudicating Membership In Or
Affiliation With Proscribed Organization:
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4) (U) Sources of Information:
A finding of ineligibility under INA 212(a)(3)(D) may be based upon evidence
available through:
(a) (U) The visa application;
(b) (U) The applicants
statements;
(c) Unavailable
(d) (U) A check of post files,
consular lookout and support system (CLASS), or Independent Name Check (INC),
or any other outside information available.
(5) (U) Applicants Required to
Divulge Memberships: INA 222(a) requires immigrant visa applicants to
respond to questions on the visa application:
(a) (U) Applicants full and
true name, any other name which he or she has used or by which he or she has
been known;
(b) (U) Age and sex;
(c) (U) Date and place of birth;
and
(d) (U) Additional information
necessary to identify the applicant and the enforcement of the immigration and
nationality laws (e.g., organizational memberships).
(e) (U) If an applicant fails to
do so, you should ask him or her questions.
e. (U) Definition Of Affiliate:
(1) (U) In General: The term
affiliate as used in INA 212(a)(3)(D) 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.
(2) (U) Defining Affiliation:
INA 101(e)(2) states: The giving, loaning or promises of support or of money
or any other thing of value for any purpose to any organization shall be presumed
to constitute affiliation therewith; but nothing in this paragraph shall be
construed as an exclusive definition of affiliation.
(3) (U) Affiliation Requires Positive
Action: 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.
f. (U) Government Workers In
Communist And Communist-Controlled Countries:
(1) (U) Responsible Position With
Communist Government Generally Constitutes Affiliation: As stated in 22
CFR 40.34(c), voluntary service in a political capacity constitutes affiliation
with the political party or organization in power at the time of such service.
Employment in a responsible position in the government of a communist or
communist-controlled country generally constitutes grounds for a finding of ineligibility
under INA 212(a)(3)(D). This presupposition of ineligibility, however, may be
rebutted by the presentation of credible evidence that would bring the case
within the exceptions discussed in 9 FAM
302.5-6(B)(5) through 9 FAM
302.5-6(B)(7) below.
(2) (U) Rank and File Government Workers
Not Presupposed Ineligible: Rank-and-file government workers in
communist and communist-controlled countries, including those employed in the
information media, are not presupposed to be ineligible under INA
212(a)(3)(D). Their cases should be evaluated on the same basis as all other
immigrant visa applicants.
(3) (U) Type of Passport May Indicate
Nature of Position: One criterion for determining the nature of an
aliens position is the type of passport he or she holds. Possession of a
diplomatic, special, or service passport issued by a communist or
communist-controlled country, while not conclusive, raises the probability of
communist membership or affiliation and should be the subject of further
inquiry and/or investigation.
(4) (U) Consular Post in Aliens Home
Country Consulted: United States consular posts in the aliens country
of nationality have the best perspective on whether an aliens government
employment constitutes sufficient grounds for a finding of ineligibility.
Therefore, in third-country cases, you must consult with the appropriate United
States post in the aliens home country prior to taking final action on the
visa application and should ordinarily defer to the opinion of the consular
officer at that post.
g. (U) Service In Armed Forces Of
Communist Or Communist-Controlled Countries: As stated in 22 CFR
40.34(b), service, whether voluntary or not in the armed forces of any country,
shall not be regarded, of itself as constituting or establishing an aliens
membership in or affiliation with, any proscribed organization, and shall not
constitute a ground of ineligibility to receive a visa. However,
continuing service and/or promotion to a higher rank, e.g., the officer corps,
could result in the aliens serving in a political capacity which would be
cause for a finding of ineligibility under INA 212(a)(3)(D).
h. (U) Aliens Previously Presumed
Ineligible: In the past, nonimmigrant aliens were often presumed to be ineligible
under former 212(a)(28)(C) based on factors in the applicants case which
indicated possible communist membership or affiliation (e.g., type of passport
carried, nature of employment). These presumptive findings were always made
without the benefit of a personal interview. You shall adjudicate such cases
anew during the immigrant visa interview, giving the alien every opportunity to
rebut the previous presumptive finding of ineligibility.
9 FAM 302.5-6(B)(5) (U)
Exception for Past Membership
(CT:VISA-798; 05-16-2019)
a. (U) In General:
(1) (U) INA 212(a)(3)(D)(iii)
relieves an alien of visa ineligibility if his or her membership or affiliation
terminated at least:
(a) (U) Two years before the
date of application for a visa or for admission; or
(b) (U) Five years before the
date of application for a visa or for admission, in the case of an alien whose
membership or affiliation was with the party controlling the Government of a
foreign state that is a totalitarian dictatorship as of the date of
application.
(2) (U) This exception does
not apply if it is determined that the alien is a threat to the security of the
United States. It should be noted, however, that this issue will normally
arise if there is also a question of possible ineligibility under INA
212(a)(3)(A) or INA 212(a)(3)(B).
(3) (U) Exception for close
family members, the Secretary of Homeland Security (DHS) may, in the
Secretarys discretion, waive the application of clause (i) INA 212(a)(3)(D):
(a) (U) In the case of an
immigrant who is the parent, spouse, son, daughter, brother, or sister of a
citizen of the United States; and
(b) (U) Or a spouse, son or
daughter of an alien lawfully admitted for permanent residence for humanitarian
purposes, and to assure family unity or when it is in public interest, if the
immigrant is not a threat to the security of the United States.
b. (U) Active Opposition No Longer
Required: The previous requirement for a showing of active opposition
to communism as a condition for relief from visa ineligibility was eliminated
by the Immigration Act of 1990. Mere termination of membership or affiliation
for the requisite time period now suffices to provide relief under INA
212(a)(3)(D)(iii).
c. (U) Credible Assertion Of
Termination Usually Sufficient: If an alien admits a past membership or
affiliation but asserts credibly that the membership or affiliation was
terminated two (or in some cases, five) or more years ago, you should accept
the assertion at face value. You should reject the aliens assertion only
if the officer has controverting evidence or has another articulable reason for
doing so.
d. Unavailable
e. Unavailable
(1) (U) Consular officer has
information indicating that the claimed termination of membership did not, in
fact, occur;
(2) (U) Consular officer has
reason to believe the alien may be a threat to the security of the United
States; or
(3) (U) Alien elects to plead
in the alternative as described in paragraph d above.
(4) (U) All other cases
involving relief under INA 212(a)(3)(D)(iii) you may adjudicate the case
without reference to the Department.
9 FAM 302.5-6(B)(6) (U)
Relief for Non-meaningful Association
(CT:VISA-798; 05-16-2019)
a. (U) In General:
(1) (U) Non-meaningful
membership or affiliation has never been codified in the INA, but is rather a
judicially-created concept. It does, however, afford relief from in appropriate cases.
(2) Unavailable
b. (U) Illustrative Cases: In
the illustrative cases which follow, it was held that membership or affiliation
in a proscribed organization did not constitute a meaningful association. In
each case, the alien had not had a commitment to the political and ideological
convictions of communism.
(1) (U) The Supreme Court held
in Rowoldt v. Perfetto (355 U.S. 115, 1957) that an aliens connection with a
proscribed organization must constitute a meaningful association, and that
membership was not present when the dominating impulse to the affiliation was
wholly devoid of any political implications. This modified the ruling in
Galvan v. Press (347 U.S. 522, 1954) that membership was present if there is a
substantial basis for finding that an alien consciously committed himself or
herself to the Communist Party by joining an organization known as the
Communist Party which operates as a distinct and active political organization.
(2) (U) The Supreme Court in
Gastelum-Quinones v. Kennedy (374 U.S. 469, 1963) cited the Galvan and Rowoldt
decisions with approval and held that membership was not present if the alien,
during the association with the proscribed organization, was not aware of its
nature as a political organization, and that even participation in the
organizations activities would not constitute membership unless the
participation would substantially support the inference of awareness of the
political aspects of the organization.
(3) (U) Membership is not
present if it is proven that the alien joined accidentally, artificially, or
unconsciously, or in appearance only. (Colyer v. Skeffington, 265 Fed. 17, 72,
1920)
(4) (U) Membership is not
present if it is established that the alien joined an affiliate of the
Communist Party, or a subdivision thereof, when the alien had no knowledge of
the relationship of the affiliate to the Communist Party or its subdivisions.
(In the Matter of C6 I&N Dec. 20; approved by the Attorney General, March
14, 1955.)
c. (U) Membership Without Knowledge
Or Consent: Membership is not present if the alien establishes
enrollment as a member without his or her knowledge or consent.
d. (U) Membership For Anti-Communist
Intelligence Purposes: Membership is not present if it is established
that the alien joined a proscribed organization for intelligence purposes at
the request of an anti-communist group, or that the alien joined the
organization solely to combat communist control and to carry on anti-communist
activities within the organization.
9 FAM 302.5-6(B)(7) (U)
Relief for Non-voluntary Membership
(CT:VISA-889; 07-09-2019)
a. (U) In General:
(1) (U) INA 212(a)(3)(D)(ii)
provides that a membership or affiliation that would otherwise render an alien ineligible
under INA 212(a)(3)(D) will not do so if the membership or affiliation is or
was:
(a) (U) Involuntary (see
paragraph b below);
(b) (U) Solely when the alien
was under 16 years of age (see paragraph c below);
(c) (U) Solely by operation of
law (see 9
FAM 302.5-6(B)(7) paragraph d below); or
(d) (U) Solely for the purpose
of obtaining employment, food rations, or other essentials of living (see paragraph
e below).
(2) Unavailable
b. (U) Involuntary Membership:
Membership or affiliation is involuntary when it is the result of such factors
as fraud, duress, coercion, incapacity, or error which impair or negate the
capacity for affirmative and intentional action. A common example is when
police repression or the threat and/or use of political or economic sanctions
compels membership in the party or an affiliate organization. The burden is on
the alien to establish that the association was involuntary. The aliens
credibility is enhanced if membership or affiliation is or was nominal and
without active participation in the affairs of the proscribed organization,
other than periodic payment of dues and/or attendance at required meetings of
the organization.
c. (U) Membership While Under 16
Years Of Age: If an immigrant applicants membership or affiliation
occurred prior to 16 years of age, the relief provided by INA 212(a)(3)(D)(ii)
applies. The aliens activities and/or continuing commitment to communism
after 16 years of age, however, are not covered by this exception.
d. (U) Membership Solely By Operation
Of Law: As stated in 22 CFR 40.34(e), membership solely by operation of
law is considered to include any case wherein the alien automatically, and
without personal acquiescence, became a member of or affiliated with a
proscribed party or organization resulted from an official act, proclamation,
order, or decree.
e. (U) Membership For Purposes Of
Obtaining Essentials Of Living:
(1) (U) In General:
(a) (U) In the absence of an
ideological commitment to communism, membership or affiliation established for
the purpose of obtaining the various physical essentials of living falls within
the exemptions of INA 212(a)(3)(D)(ii).
(b) (U) The phrase essentials
of living refers to a minimum standard of civilized life and not simply to
mere continued survival. It includes but is not limited to housing, food
rations, employment, medical and dental care, clothing, furnishings,
transportation, and education.
(2) (U) Membership to Obtain or
Continue High Education: An alien whose membership was nominal and who
does not appear to have subscribed to communist ideology may be considered to
fall within the purview of INA 212(a)(3)(D)(ii) if he or she joined for one or
more of the following reasons:
(a) (U) Membership was a
prerequisite for admission to a university or other advanced school; or
(b) (U) Although membership was
not a prerequisite for admission to a university or other advanced school,
membership was necessary for the alien to continue his or her studies; or
(c) (U) Membership was necessary
to obtain academic benefits such as scholarships, dormitory accommodations,
food rations, reduced transportation fares, etc.
(3) (U) Membership for Employment:
Aliens who joined communist organizations solely for the purpose of obtaining,
retaining, changing, or advancing in employment commensurate with their
educational background and experience, whose memberships were nominal, and who
do not appear to have subscribed to communist ideology, may be considered to be
within the purview of INA 212(a)(3)(D)(ii).
f. (U) Non-Voluntary Membership
Usually Occurs In Communist Countries: Membership or affiliation
falling within the purview of INA 212(a)(3)(D)(ii) is usually found to occur in
a communist or communist-controlled country. While it is possible for such
association to happen in noncommunist countries, it is substantially more
difficult to establish.
g. (U) Membership In Mass
Organizations: Membership in a mass organization in a communist or
communist-controlled country may come under INA 212(a)(3)(D)(ii) if:
(1) (U) The membership meets
one or a combination of the criteria listed in paragraph a above;
(2) (U) It is shown that there
was no ideological commitment to communism; and
(3) (U) The membership was of
a mere rank-and-file nature without active participation in the activities of
the organization.
9 FAM 302.5-6(B)(8) (U)
Annotating Immigrant Visa Applications in Non-Voluntary Association and Past
Membership Cases
(CT:VISA-798; 05-16-2019)
(U) When an immigrant visa
applicant has been found to benefit from the relief provided by INA
212(a)(3)(D)(ii) this should be noted in the CCD record, or in the remarks box
for the Security and Background section of the Form DS-260, Online Application
for Immigrant Visa and Alien Registration CCD Application Web Report.
9 FAM 302.5-6(C)
9 FAM 302.5-6(C)(1) Unavailable
(CT:VISA-889; 07-09-2019)
a. Unavailable
b. Unavailable
9 FAM 302.5-6(C)(2) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable
9 FAM 302.5-6(C)(3) (U)
Clearances for Third-Country Applicants
(CT:VISA-219; 10-20-2016)
(U) When an alien is applying in a
country other than in which the claimed non-meaningful or non-voluntary
association occurred, you should consult with, and obtain a clearance from, the
appropriate post prior to visa issuance. (See Reciprocity Schedule.)
9 FAM 302.5-6(C)(4) (U)
Procedures
(CT:VISA-539; 03-26-2018)
Unavailable
9 FAM 302.5-6(D) (U) Waiver
9 FAM 302.5-6(D)(1) (U)
Waivers for Immigrants
(CT:VISA-798; 05-16-2019)
a. (U) In General: An
immigrant alien who is ineligible for a visa under INA 212(a)(3)(D) may seek a
waiver of ineligibility from the Department of Homeland Security (DHS) under
INA 212(a)(3)(D)(iv) if he or she is the parent, spouse, son, daughter,
brother, or sister of a U.S. citizen, or the spouse, son, or daughter of a
lawful permanent resident (LPR) for humanitarian purposes to assure family
unity, or when it is otherwise in the public interest. A waiver of
ineligibility may not be granted to an alien who is a threat to the security of
the United States.
b. (U) Procedures:
(1) (U) Waiver Applications Submitted
Directly to DHS: Instruct ineligible applicants to file their Form I-601,
Application for Waiver of Ground of Ineligibility, with USCIS per the USCIS
Form I-601 instructions. If the applicant also requires Form I-212, they must
submit it simultaneously with the Form I-601. Approved I-601 waivers on behalf
of aliens who obtain lawful permanent residence on a conditional basis under
INA 216 automatically terminate concurrently with the termination of such
status, and separate notification of termination of the waiver is not required
when the alien is notified of the termination of residence under INA 216.
(2) (U) Responsibility of Consular
Officers: You must interview the alien to establish that the finding of
ineligibility is fully in accord with law and regulations and that any
necessary qualifying relationship exists. Consular officers should record
notes that clearly and thoroughly document the factual findings that support
each element of the ineligibility so that U.S. Citizenship and Immigration
Services (USCIS) will have available the information required to adjudicate
Form I-601.
(3) (U) Notating DHS Waiver Action:
(a) (U) When a waiver is granted
under INA 212(a)(3)(D)(iv), USCIS will notify the consular post via an
encrypted spreadsheet if the waiver was adjudicated at the Nebraska Service
Center (NSC). Post must make a case note indicating the date USCISs decision,
the grounds of ineligibility waived and the name of the spreadsheet file that
post received:
Per USCIS/NSC notification received (date),
(grounds of ineligibility) waived for (NVC case number).
Spreadsheet POST_DD_MM_YYYY_HR_MIN.csv
(b) (U) If the applicant filed
Form DS-260, Online Application for Immigrant Visa and Alien Registration, you
should note DHSs waiver approval on the Online IV Application Report using the
Add Remarks function at the top of the Report. The post must also note
212(a)(3)(D)(iv) in the block provided for specifying waiver action on the
machine readable immigrant visa (MRIV). Consular sections will not receive a
physical copy of the approval record from USCIS. There is no need to
scan.
9 FAM 302.5-6(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-1; 11-18-2015)
(U) INA 212(a)(3)(D) does not
apply to nonimmigrant visa applicants.
9 FAM 302.5-6(E) Unavailable
9 FAM 302.5-6(E)(1) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable
9 FAM 302.5-6(E)(2) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable