UNCLASSIFIED (U)

9 FAM 302.5 

(U) Ineligibility based on National Security Grounds - INA 212(a)(3)(A) and INA 212(a)(3)(D)

(CT:VISA-1088;   06-23-2020)
(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-1080;   06-01-2020)

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-1080;   06-01-2020)

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 ENGAGE IN UNLAWFUL ACTivity IN THE United States - INA 212(a)(3)(A)(ii)

9 FAM 302.5-4(A)  (U) Grounds

(CT:VISA-1080;   06-01-2020)

(U) INA 212(a)(3)(A)(ii) makes a visa applicant inadmissible, and thus ineligible for a visa, if you know or have reason to believe that the applicant is traveling to the United States solely, principally, or incidentally to engage in "any other unlawful activity." Some of the more common situations involving “other unlawful activity” include: travel to a state where the applicant’s marriage to a first cousin or a minor violates that state’s criminal law(see 9 FAM 302.5-4(B)(3)), or travel to engage in business activities related to the marijuana industry that violate federal criminal law (see 9 FAM 302.5-4(B)(4)).  An applicant also may be found ineligible under this section if he or she is an active member of an identified criminal organization described in 9 FAM 302.5-4(B)(2).  

9 FAM 302.5-4(B)  (U) Application

9 FAM 302.5-4(B)(1)  Unavailable

(CT:VISA-1080;   06-01-2020)

Unavailable 

9 FAM 302.5-4(B)(2)  (U) Aliens Who Are Members of an Identified Criminal Organization

(CT:VISA-1088;   06-23-2020)

a. (U) An INA 212(a)(3)(A)(ii)visa ineligibility may arise if you find facts supporting a reason to believe that the applicant is an active member of one of the following criminal organizations:

(1)  (U) the Chinese Triads;

(2)  (U) the Mafia;

(3)  (U) the Yakuza;

(4)  (U) any of the various groups operating in the countries that comprised the Former Soviet Union (i.e., Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Turkmenistan,  Ukraine, and Uzbekistan; note that while the Soviet Union claimed the Estonia, Latvia, and Lithuania, the United States did not recognize those claims);

(5)  (U) any of the organized Salvadoran, Honduran, Guatemalan, and Mexican street gangs in Central and North America, including, but not limited to, the Mara Salvatrucha 13 (MS-13), Mexican Mafia, SUR-13, Matidos-13, Florencia-13, La Familia, Norteños, 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;

(6)  (U) the biker gangs the Hells Angels, Outlaws, Bandidos, and Mongols; and

(7)  (U) Primeiro Comando da Capital (First Capital Command). 

(U) If you find there is reason to believe an applicant is an active member of one of these criminal organizations, 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, except in the limited cases described below in 9 FAM 302.5-4(C)See also paragraph (f) through (i) below regarding determining membership. 

b. (U) Background on Criminal Organizations and 3A2 Ineligibility.  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 criminal organizations makes it a de facto permanent ground of ineligibility, unless the applicant demonstrates, to your satisfaction and with clear and compelling evidence, that he or she no longer is an active member of the organization.  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 indicates continuous involvement in criminal activities and, therefore, could reasonably support a conclusion that any travel by such an alien to the United States likely will involve criminal activity, whether as a principal or incidental purpose for such travel.  Therefore, while the ineligibility, as a matter of law, is related to the applicant’s intent for each specific trip, there is a reasonable basis for treating this as a blanket ineligibility applicable to every application for entry to the United States.

d. (U) 3A2 Does Not Apply If There Is No Reason to Believe the Applicant Will Engage in Unlawful Activity on Trip.

(1)  (U) There are some rare occasions where a finding that an alien is a member of an identified criminal organization will not result in a finding of 3A2 ineligibility for that alien with respect to a specific application for a specific purpose of travel.  For example, if the alien is traveling as part of an official government delegation on official business to the United Nations, a visa could be issued if there is no reason to believe the alien intends to engage, even incidentally, in violations of United States law during that one specific trip.  Similarly, the 3A2 ineligibility may not apply if the alien was coming to cooperate with U.S. authorities in a U.S. government investigation.  In such cases, the consular officer reasonably may find that the applicant does not intend to commit criminal acts in the United States. 

(2)  (U) Also, 3A2 should not be applied to an alien previously found to be a member of an identified organized crime group if you determine, based on clear and compelling evidence, that he or she has ceased to be associated in any way with any criminal organization (such as might be the case with aliens who have testified against, or otherwise cooperated with investigations of, other members of a criminal organization with which the alien had been affiliated).  In any such cases, you should make clear case notes setting forth your basis for finding that the applicant was a member of such a group and describing the clear and compelling evidence that he or she is no longer associated with the group or otherwise involved in ongoing criminal activities. 

e. (U) You must request an advisory opinion via NIV or IVO if you intend to issue a visa to an active or former member of an identified criminal organization under paragraph (d) above. 

f.  (U) Determining Membership in an Identified Criminal Organization:  Ineligibility determinations must be made on a case-by-case basis, based on the totality of the circumstances.  You are required to make clear factual findings in the case notes, setting forth in detail all the facts supporting a reason to believe that the applicant is a member of a criminal organization described in 9 FAM 302.5-4(B)(2)(a), and you must identify the organization of which he or she is a member. 

g. Unavailable 

h. (U) Factors for Consideration.  In evaluating the totality of the circumstances, you should consider all relevant factors, including, but not limited to:

(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 that suggests close affiliation;

(3)  (U) Receiving financial support or recognition from the organization;

(4)  (U) Determination of membership by a competent court;

(5)  (U) Credible information provided by local or U.S. law enforcement authorities, or other government agencies, indicating that the individual is a member;

(6)  (U) Frequent association with other members;

(7)  (U) Voluntarily displaying symbols of the organization;

(8)  (U) Participating in the organization's activities, even if lawful;

(9)  (U) Information regarding the applicant’s criminal record, especially when that information indicates participation in crimes commonly committed by the organization’s members, or arrests occurring with other members of the organization; and

(10) (U) The applicant’s demeanor and credibility in answering questions on matters relevant to possible associations with identified criminal organizations, including any efforts by the applicant to evade questioning on such matters, to conceal evidence of his or her criminal associations or activities, or to misrepresent relevant facts.

i.  Unavailable

9 FAM 302.5-4(B)(3)  (U) Aliens Whose Marriage Violates State Law

(CT:VISA-1080;   06-01-2020)

(U)   An applicant may be ineligible under INA 212(a)(3)(A)(ii) if he or she is accompanying (or following-to-join) a spouse to a state where the marriage violates state criminal law.  For example, while state laws vary widely, sexual activity between an adult and a minor generally constitutes a criminal offense, and in some states marriage between the parties does not constitute a legal defense (i.e., there is no spousal exception in some states, while other states provide an exception for sexual activity between spouses).  Similarly, marriages between certain family members may violate some states’ criminal incest laws.  Additionally, if an applicant intends to marry another individual in the United States in a state where such marriage would be legal, but will then reside in another state where such marriage may violate that state’s laws, the applicant may be ineligible under INA 212(a)(3)(A)(ii). If you find that an applicant’s marriage will violate the criminal law of the state(s) of intended residence or visit, an advisory opinion is not required to find the applicant ineligible 3A2.  If you have any questions whether a marriage violates a state law, you may submit an AO to CA/VO/L/A informally via email or formally via NIV or IVO.  See 9 FAM 302.5-4(C) paragraph (c) below regarding AO exceptions.

9 FAM 302.5-4(B)(4)  (U) Aliens Who Seek to Participate in Activities Involving Marijuana That Are Prohibited under Federal Criminal Law

(CT:VISA-1080;   06-01-2020)

(U) An applicant may be ineligible under INA 212(a)(3)(A)(ii) if he or she seeks to participate in activities related to marijuana or the marijuana industry.  Marijuana is a controlled substance under U.S. federal law, and it is unlawful to possess, manufacture, distribute, or possess with the intent to distribute a controlled substance.  See 9 FAM 302.4-2(B)(2).  Federal law also makes it a crime to conspire with others to engage in those acts, or to aid or abet those acts.  Applicants who intend to come to the United States to participate in activities involving marijuana or the marijuana industry in violation of federal criminal law are ineligible pursuant to INA 212(a)(3)(A)(ii), regardless of whether those activities are legal or decriminalized under the law of the state where they will take place.  If you find that an applicant intends to engage in such marijuana-related activities in the United States, an advisory opinion is not required to find the applicant ineligible 3A2. You should be aware that while marijuana is a controlled substance under federal law, hemp (a form of cannabis with a very low concentration of tetrahydrocannabinol (THC)) was removed from the federal list of controlled substances in 2018.  The U.S. Department of Agriculture now regulates the production of hemp in the United States and allows the transfer of hemp-derived products across state lines, and it also places no restrictions on the sale, transport, or possession of hemp-derived products, so long as those items are produced in a manner consistent with the law.  If you have any questions whether certain proposed activities violate U.S. federal law, you may submit an AO to CA/VO/L/A informally via email or formally via NIV or IVO.  See 9 FAM 302.5-4(C) paragraph (c) below regarding AO exceptions.

9 FAM 302.5-4(B)(5)  (U) Representatives of Taiwan

(CT:VISA-1080;   06-01-2020)

(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 representative 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(C)  (U) Advisory Opinions

(CT:VISA-1080;   06-01-2020)

a. (U) For INA 212(a)(3)(A)(ii) cases involving applicants who are active members of an identified criminal organization, you must request an advisory opinion from CA/VO/L/A through NIV or IVO, unless the case meets one of the exceptions set forth in paragraph (d) below. 

b. Unavailable 

c.  (U) An advisory opinion is not required for an INA 212(a)(3)(A)(ii) finding of ineligibility based on a marriage that violates a state’s criminal law (see 9 FAM 302.5-4(B)(3) above) or if you find the applicant will engage in criminal activities by participating in federally prohibited conduct relating to marijuana or the marijuana industry (see 9 FAM 302.5-4(B)(4) above).

d. Unavailable 

(1)  Unavailable

(2)  Unavailable

(3)  Unavailable

(4)  Unavailable   

9 FAM 302.5-4(D)  (U) Waiver

9 FAM 302.5-4(D)(1)  (U) Waivers for Immigrants

(CT:VISA-1080;   06-01-2020)

(U) No waiver is available for immigrants found ineligible under INA 212(a)(3)(A)(ii).  For immigrants previously found ineligible under INA 212(a)(3)(A)(ii), you must determine whether the applicant will engage, even incidentally, in other unlawful activity if permitted to enter the United States as an immigrant.  For example, an applicant who intended to reside with his or her spouse in one state, but was found ineligible for a visa because the marriage violated that state’s criminal law, may be able to establish to your satisfaction that he or she will reside in a different state where the marriage does not violate that state’s law.  In this example, the applicant would no longer be ineligible under 3A2. 

9 FAM 302.5-4(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-1080;   06-01-2020)

(U)  No waiver is available for nonimmigrants found ineligible under INA 212(a)(3)(A)(ii). In rare cases, an applicant who was previously found ineligible under INA 212(a)(3)(A)(ii) may be found eligible if he or she demonstrates to your satisfaction or through clear and compelling evidence that he or she does not intend to engage, even incidentally, in criminal activity for this specific trip, or he or she is no longer associated with an identified criminal organization.  See 9 FAM 302.5-4(B)(2) paragraph d and e above.

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-1080;   06-01-2020)

a. Unavailable 

b. Unavailable 

   

c.  Unavailable

(1)  Unavailable

(2)  Unavailable

(a)  Unavailable 

(i)     Unavailable 

(ii)    Unavailable 

(iii)    Unavailable 

(b)  Unavailable 

(c)  Unavailable 

(3)  Unavailable

(a)  Unavailable

(b)  Unavailable

(c)  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 applicant’s 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) Applicant’s 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 alien’s 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 Alien’s Home Country Consulted:  United States consular posts in the alien’s country of nationality have the best perspective on whether an alien’s 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 alien’s 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 alien’s 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 alien’s 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 applicant’s 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 Secretary’s 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 alien’s 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 alien’s 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 organization’s 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 C–6 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 alien’s 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 applicant’s membership or affiliation occurred prior to 16 years of age, the relief provided by INA 212(a)(3)(D)(ii) applies.  The alien’s 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)  Unavailable

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 USCIS’s 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 DHS’s 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

UNCLASSIFIED (U)