9 FAM 302.5
(U) Ineligibility based on National Security Grounds - INA 212(a)(3)(A) and INA 212(a)(3)(D)
(CT:VISA-2128; 02-20-2025)
(Office of Origin: CA/VO)
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-1282; 05-14-2021)
(U) INA 212(a)(3)(A)(i)(I) of the Immigration and Nationality Act (INA) renders ineligible any applicant 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-2012; 06-13-2024)
Unavailable.
9 FAM 302.5-2(C) Unavailable
9 FAM 302.5-2(C)(1) Unavailable
(CT:VISA-1282; 05-14-2021)
Unavailable.
9 FAM 302.5-2(C)(2) (U) Procedures
(CT:VISA-1583; 07-15-2022)
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-1933; 03-01-2024)
(U) No waiver is available for an immigrant 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-1499; 03-03-2022)
(U) INA 212(a)(3)(A)(i)(II) renders ineligible any applicant who you know or have 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-2012; 06-13-2024)
(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-2049; 08-15-2024)
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.
(5) Unavailable.
9 FAM 302.5-3(C) Unavailable
9 FAM 302.5-3(C)(1) Unavailable
(CT:VISA-1282; 05-14-2021)
Unavailable.
9 FAM 302.5-3(C)(2) Unavailable
(CT:VISA-2012; 06-13-2024)
Unavailable.
9 FAM 302.5-3(D) (U) Waivers
9 FAM 302.5-3(D)(1) (U) Waivers for Immigrants
(CT:VISA-2012; 06-13-2024)
(U) No waiver is available for an immigrant found ineligible under INA 212(a)(3)(A)(i)(II). However, the ineligibility applies only to current circumstances and may be overcome.
9 FAM 302.5-3(D)(2) (U) Waivers for Nonimmigrants
(CT:VISA-1794; 07-12-2023)
(U) No waiver is available for nonimmigrants found ineligible under INA 212(a)(3)(A)(i)(II). However, the ineligibility 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-2128; 02-20-2025)
(U) INA 212(a)(3)(A)(ii) makes a visa applicant ineligible 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." Common situations may 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 they are 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-1583; 07-15-2022)
Unavailable.
9 FAM 302.5-4(B)(2) (U) Applicants Who Are Members of an Identified Criminal Organization
(CT:VISA-2128; 02-20-2025)
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 (while the Soviet Union claimed 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, Norteńos, 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).
(8) (U) Tren de Aragua.
b. (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 AO through the IVO or NIV system as appropriate to L/CA, except in the limited cases described below in 9 FAM 302.5-4(C). See also paragraph (f) through (i) below regarding determining membership.
c. (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 they are no longer an active member of the organization. Organized crime membership became a ground of ineligibility in 1965, when then Attorney General Katzenbach concurred with a recommendation by Secretary of State Rusk that an applicant's membership in the Mafia was a sufficient basis on which to find the applicant ineligible under then INA 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). In 2025, the ineligibility was extended to active members of the transnational criminal organization Tren de Aragua (TdA).
d. (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 applicant 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.
e. (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 applicant is a member of an identified criminal organization will not result in a finding of 3A2 ineligibility for that applicant with respect to a specific application for a specific purpose of travel. For example, if the applicant 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 applicant 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 applicant was coming to cooperate with U.S. authorities in a U.S. government investigation. In such cases, you 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 applicant previously found to be a member of an identified organized crime group if you determine, based on clear and compelling evidence, that the applicant has ceased to be associated in any way with any criminal organization (such as might be the case with applicants who have testified against, or otherwise cooperated with investigations of, other members of a criminal organization with which the applicant 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 they are no longer associated with the group or otherwise involved in ongoing criminal activities.
f. (U) You must request an AO 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.
g. (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 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) paragraph a, and you must identify the organization of which they are a member.
h. Unavailable.
i. (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 their criminal associations or activities, or to misrepresent relevant facts.
j. Unavailable.
(1) Unavailable.
(2) Unavailable.
9 FAM 302.5-4(B)(3) (U) Applicants Whose Marriage Violates State Law
(CT:VISA-2012; 06-13-2024)
(U) An applicant may be ineligible under INA 212(a)(3)(A)(ii) if they are 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 AO is not required to find the applicant ineligible 3A2. If you question whether a marriage violates a state law, you may submit an AO to L/CA informally via email or formally via NIV or IVO as appropriate. See 9 FAM 302.5-4(C) paragraph c below regarding AO exceptions.
9 FAM 302.5-4(B)(4) (U) Applicants Who Seek to Participate in Activities Involving Marijuana That Are Prohibited under Federal Criminal Law
(CT:VISA-1583; 07-15-2022)
(U) An applicant may be ineligible under INA 212(a)(3)(A)(ii) if they seek 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 AO 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 L/CA informally via email or formally via NIV or IVO as appropriate. 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-1282; 05-14-2021)
(U) Unless the applicant 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 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-2012; 06-13-2024)
a. (U) For INA 212(a)(3)(A)(ii) cases involving applicants who are active members of an identified criminal organization, request an AO from L/CA through NIV or IVO, as appropriate unless the case meets one of the exceptions set forth in paragraph (d) below.
b. Unavailable.
c. (U) An AO 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.
(a) Unavailable.
(b) 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-2012; 06-13-2024)
(U) No waiver is available for an immigrant found ineligible under INA 212(a)(3)(A)(ii). For an immigrant previously found ineligible under INA 212(a)(3)(A)(ii), determine if 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 their 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 they 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-1499; 03-03-2022)
(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 they demonstrate to your satisfaction or through clear and compelling evidence that they do not intend to engage, even incidentally, in criminal activity for this specific trip, or they are 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-2012; 06-13-2024)
Unavailable.
9 FAM 302.5-4(E)(2) Unavailable
(CT:VISA-2124; 02-05-2025)
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-1282; 05-14-2021)
(U) INA 212(a)(3)(A)(iii) renders ineligible any applicant who you know or have 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-2012; 06-13-2024)
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-1282; 05-14-2021)
Unavailable.
9 FAM 302.5-5(C)(2) (U) Procedures
(CT:VISA-1583; 07-15-2022)
Unavailable.
9 FAM 302.5-5(D) (U) Waiver
9 FAM 302.5-5(D)(1) (U) Waivers for Immigrants
(CT:VISA-2012; 06-13-2024)
(U) No waiver is available for an immigrant 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(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-2012; 06-13-2024)
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-1583; 07-15-2022)
(U) INA 212(a)(3)(D) renders ineligible any applicant applying for an IV 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-1583; 07-15-2022)
(U) INA 212(a)(3)(D) is a refusal category that applies only to IV applications.
9 FAM 302.5-6(B)(2) (U) Major Elements
(CT:VISA-2126; 02-13-2025)
(U) The major elements of INA 212(a)(3)(D) are as follows:
(1) (U) IV applicants who are or have been members of, or affiliated with the Communist or any other totalitarian party, domestic or foreign, are ineligible under INA 212(a)(3)(D).
(2) (U) Exceptions: An immigrant visa applicant is excepted from this ineligibility if he or she qualifies for either of the two statutory exceptions:
(a) (U) Exception for Past Membership; or
(b) (U) Exception for Involuntary Membership.
(3) (U) DHS may waive ineligibility for IV applicants who have the requisite family relationship with a U.S. citizen or LPR for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, if the immigrant is not a threat to the security of the United States.
9 FAM 302.5-6(B)(3) (U) Requirements for a Finding
(CT:VISA-2126; 02-13-2025)
(U) In determining possible ineligibility under INA 212(a)(3)(D):
(1) (U) You must first determine if the IV applicant was a member or affiliate of a proscribed organization (see 9 FAM 302.5-6(B)(4) below);
(2) (U) If you determine that such membership or affiliation exist, you must determine if the membership or affiliation was terminated at least two (or five, if it was with a party controlling the government of a foreign state that is a totalitarian dictatorship of such data) years ago (see 9 FAM 302.5-6(B)(5) below); and
(3) (U) If you determine that the membership or affiliation continued to a point within the two-year or five-year period, you should then determine whether the association is or was non-voluntary (see 9 FAM 302.5-6(B)(6) and 9 FAM 302.5-6(B)(7) below), or whether the applicant is eligible 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-2126; 02-13-2025)
a. (U) In General: An IV 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 a 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 applicant who was, or is voluntarily affiliated with a noncommunist party, organization, or group, or any section, subsidiary, branch, affiliate, or subdivision thereof, during the period in which the totalitarian party did not or does not advocate the establishment of totalitarian dictatorship in the United States, is not ineligible under INA 212(a)(3)(D) to receive a visa.
d. (U) Identifying Non-Communist Totalitarian Parties:
(1) Unavailable.
(2) (U) Individual and Religious Liberty: A totalitarian party may be identified by its advocating of a regime that is “total” in scope. Totalitarian parties are generally defined by the subordination of individuals to the state and strict controls of all aspects of life by coercive measures, disfavoring individual or religious liberty. Unlike constitutionalism in the United States—which prohibits government from establishing religion or prohibiting its free exercise, or abridging the freedoms of speech, press, assembly, and petition—totalitarian parties may be identified by their conceding no such restraints to individuals or civic institutions, practicing “the forcible suppression of opposition to such party” and desire that “the party and the government constitute an indistinguishable unit.” INA 101(a)(37);
(3) Unavailable.
(4) (U) Popular Elections: “Not representative in fact” includes parties that do not allow party or government elections by a popular electorate. INA 101(a)(37). This may be identified by lack of elections or widespread reporting of election fraud or vote rigging.
d. (U) Adjudicating Membership in or Affiliation with Proscribed Organization:
(1) Unavailable.
(2) Unavailable.
(a) Unavailable.
(b) Unavailable.
(3) (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, CLASS or INC, or any other available outside information; and
(e) (U) In third-country cases, you may consult with the appropriate consular section in the country in which the applicant holds or held party membership before making an INA 212(a)(3)(D) determination and you should ordinarily defer to the opinion of the consular officer at that post.
(5) (U) Applicants Required to Divulge Memberships: In completing the DS-260, applicants must provide information on whether they are members or affiliates of a Communist or totalitarian party, and explain their membership or affiliation.
If an applicant fails to respond to any questions on the form, you should obtain the missing information during the interview. Failure to provide information about membership in or affiliation with a Communist or totalitarian party to the consular officer could be a basis for finding the applicant ineligible under INA 212(a)(6)(C) for material misrepresentation. See 9 FAM 302.9-4 for application of that ineligibility ground.
e. (U) Definition of Affiliate:
(1) (U) In General: The term affiliate as used in INA 212(a)(3)(D) and defined in 22 CFR 40.34(a) is 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 an adherence to or furtherance of the purposes and objectives of such association or party, or to indicate a working alliance to bring to fruition the purposes and objectives of such association or party. Parties that are “socialist” in name or political philosophy, or otherwise advocate communist political philosophy such as the collectivization of private property and the means of production, are an “affiliate” of a communist party under INA 212(a)(3)(D)(i) and 22 CFR 40.34(a). These parties are “related to, or identified with” a communist party “in such close association as to evidence an adherence to or a furtherance of the purposes and objectives of such association or party" because the history, philosophical foundation and development, and ultimate political objective—collectivization—is the same. Examples of such affiliates include, but are not limited to, the Socialist Unity Party of Germany, the Workers’ Party of Korea, the Korean Social Democratic Party, and the United Socialist Party of Venezuela.
Unavailable.
(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 Does Not Require Positive Action: Advocacy for, solidarity with, or endorsement of the ideologies of the Communist or other totalitarian party constitutes affiliation with such an organization.
f. (U) Government Workers in Communist and Communist-Controlled or Totalitarian and Totalitarian-Controlled Countries:
(1) (U) Employment in a Communist or Totalitarian Government: 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 position with political or executive-level responsibilities in the government or other government-controlled organizations of a communist or communist-controlled country therefore 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. For applicants who are or have been employed in a position in the government or other government-controlled organization, of a communist or communist-controlled country, or totalitarian or totalitarian-controlled country, you should assess the nature of responsibilities in their position, and even if not of a political nature, assess whether their mere employment is indicative of affiliation or membership with the party as, in such countries, the party and the government constitute an indistinguishable unit.
Unavailable.
(2) (U) Type of Passport May Indicate Affiliation: One criterion for determining an applicant’s affiliation to a communist or totalitarian party 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, or totalitarian or totalitarian-controlled country, suggests membership or affiliation with a proscribed party.
(3) (U) Consult the Consular Post in Applicant's Home Country: United States consular posts in the applicant’s country of nationality have perspective on whether an applicant’s employment constitutes membership or affiliation and thus constitutes sufficient grounds for a finding of ineligibility. Therefore, in third-country cases, you may consult with the appropriate consular section in the applicant’s home country before adjudicating the visa application. You may ordinarily defer to the opinion of the consular officer at that post. For further guidance, you may contact the Department.
g. (U) Service in Armed Forces of Communist or Communist-Controlled Countries: Consistent with 22 CFR 40.34(b), service in the armed forces of any country does not by itself establish an applicant’s membership in or affiliation with any proscribed organization and does not constitute a ground of ineligibility. However, continuing service may, and service or promotion to a higher rank (e.g., the officer corps) does result in the applicant’s serving in a political capacity under 22 CFR 40.34(c) which would be cause for a finding of ineligibility under INA 212(a)(3)(D).
h. (U) Employment or association with state-owned enterprises and other quasi-governmental or non-governmental organizations in Communist or Communist-controlled countries: State-owned enterprises, non-governmental organizations and quasi-governmental organizations in Communist or Communist-controlled countries are often instruments of the ruling party used by the party to control civil society and carry out political objectives. Such employment or association will generally constitute affiliation with a proscribed party.
Unavailable.
i. (U) Applicants Previously Presumed Ineligible: In the past, nonimmigrant applicants were often presumed to be ineligible under now former 212(a)(28)(C) based on factors 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 every case anew during the IV interview.
j. (U) Meaningfulness of Membership or Affiliation: In general, membership in the communist or totalitarian party is intentional and a member or affiliate of a communist or totalitarian party is aware of the party's political nature. Especially in communist and communist-controlled and totalitarian and totalitarian-controlled countries, party members are meaningfully "joining an organization known as the Communist Party which operates as a district and active political organization" (Rowoldt v. Perfetto, 355 U.S. 115, 120 (1957) (quoting Galvan v. Press, 347 U.S. 522, 529 (1954)) and are "sensible of the Party's nature as a political organization" (Gastelum-Quinones v. Kennedy, 374 U.S. 469, 467-77 (1963)). If you encounter a case wherein you doubt whether an applicant was meaningfully joining a proscribed party, send an inquiry to VO for further guidance.
9 FAM 302.5-6(B)(5) (U) Exception for Past Membership
(CT:VISA-2126; 02-13-2025)
a. (U) In General:
(1) (U) INA 212(a)(3)(D)(iii) relieves an applicant of visa ineligibility if their 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 applicant 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 applicant is a threat to the security of the United States. 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) 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, in the case of:
(a) (U) an immigrant who is the parent, spouse, son, daughter, or sibling of a citizen of the United States; and
(b) (U) an immigrant who is the spouse, son, or daughter of an applicant lawfully admitted for permanent residence .
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. Termination of membership or affiliation for the requisite period now suffices to provide relief under INA 212(a)(3)(D)(iii) if, after considering all the evidence you find the applicant's assertion of termination to be credible.
c. (U) Assertion of Termination Requirement Assessment of Credibility: If an applicant admits a past membership or affiliation but asserts that the membership or affiliation was terminated two (or five, if it was with a party controlling the government of a foreign state that is a totalitarian dictatorship as of such date) or more years ago, you may accept the assertion if under the totality of the circumstances you find clear and convincing evidence of such termination. . The burden is on the applicant to establish to your satisfaction that the applicant did in fact terminate his or her membership. Failing that, you must find the applicant ineligible. An SAO is required in certain past membership cases even when the applicant satisfactorily establishes termination of their past membership (see below guidance on SAOs in Past Membership Cases.) If an applicant obfuscates a past membership or affiliation, you must consider the implications of that action on the applicant’s credibility and a 212(a)(6)(C)(i) finding of ineligibility.
d. (U) Membership for Anti-Communist Intelligence Purposes or to Conduct Anti-Communist Activities: Membership is not present if it is established that the applicant joined a proscribed organization for intelligence purposes at the request of an anti-communist group, or that the applicant joined the organization solely to combat communist control and to carry on anti-communist activities within the organization.
9 FAM 302.5-6(B)(6) (U) Relief for Non-voluntary Membership
(CT:VISA-2126; 02-13-2025)
a. (U) In General:
(1) (U) INA 212(a)(3)(D)(ii) provides that a membership or affiliation that would otherwise render an applicant 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 applicant 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 obtaining employment, food rations, or other essentials of living (see paragraph e below).
(2) Unavailable.
b. (U) Involuntary Membership: The burden is on the applicant to establish that the association was involuntary. Membership or affiliation may be involuntary when it is the result of fraud or duress, or occurred without the applicant's knowledge. However, the burden remains on the applicant to establish to your satisfaction that the applicant’s membership was involuntary. You may determine that the applicant’s membership was involuntary if, under the totality of the circumstances, you find clear and convincing evidence of such involuntariness and that at no moment in time was the applicant’s membership or affiliation voluntary. One necessary factor to consider is whether the applicant has attempted to terminate his or her membership or affiliation, and whether that termination or attempted termination is credible. See 9 FAM 302.5-6(B)(5) paragraph c.
c. (U) Membership While Under 16 Years of Age: If an immigrant applicant’s membership or affiliation occurred before 16 years of age, the relief provided by INA 212(a)(3)(D)(ii) applies. The applicant’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 includes any case wherein the applicant automatically, and without personal acquiescence, became a member of or affiliated with a proscribed party or organization as the result of an official act, proclamation, order, or decree. An applicant's voluntary membership in or affiliation with a proscribed organization is not excepted by this exception.
e. (U) Membership for Obtaining Essentials of Living:
(1) (U) In the absence of an ideological commitment to communism, membership or affiliation established for obtaining certain physical essentials of living falls within the exemptions of INA 212(a)(3)(D)(ii).
(2) (U) Examples of the essentials of living refer to food rations, shelter, clothing, and employment at the minimum level routinely available to the rest of the population, and only if the alien participated only to the minimal extent necessary to receive these essentials of living. Benefits beyond those minimally and routinely available to the rest of the population are not “essentials of living” for purposes of this exception. If an applicant’s membership or affiliation with a communist or totalitarian party was sought for economic advantage and not actually necessary for purposes of such essentials of living, then the applicant does not qualify for the exception and should be found ineligible.
9 FAM 302.5-6(B)(7) (U) Annotating Immigrant Visa Applications in Non-Voluntary Association and Past Membership Cases
(CT:VISA-2126; 02-13-2025)
(U) When an IV applicant has been found to benefit from the relief provided by INA 212(a)(3)(D)(ii) this must be noted in the IVO record and 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-2126; 02-13-2025)
a. Unavailable.
b. Unavailable.
c. Unavailable.
9 FAM 302.5-6(C)(2) (U) Clearances for Third-Country Applicants
(CT:VISA-2126; 02-13-2025)
(U) When an applicant is applying in a country other than in which the claimed non-meaningful or non-voluntary association occurred, you may consult with, and obtain a clearance from, the appropriate post before visa issuance and note the clearance in the IVO case notes. See Reciprocity Schedule.
9 FAM 302.5-6(C)(3) (U) Procedures
(CT:VISA-2126; 02-13-2025)
Unavailable.
9 FAM 302.5-6(D) (U) Waiver
9 FAM 302.5-6(D)(1) (U) Waivers for Immigrants
(CT:VISA-2126; 02-13-2025)
a. (U) In General: An IV applicant who is ineligible for a visa under INA 212(a)(3)(D) may seek a waiver of inadmissibility from DHS under INA 212(a)(3)(D)(iv) if they are the parent, spouse, son, daughter, or sibling of a U.S. citizen, or the spouse, son, or daughter of an 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 applicant 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, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, they must submit it simultaneously with the Form I-601. Approved I-601 waivers on behalf of applicants who obtain LPR status 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 applicant is notified of the termination of residence under INA 216.
(2) (U) Your Responsibility: Interview the applicant to establish that the finding of ineligibility is fully in accord with law and regulations and that any necessary qualifying relationship exists. Your case notes should clearly and thoroughly document the findings that support each element of the ineligibility so USCIS will have available the information required to adjudicate Form I-601.
(3) (U) Notating DHS Waiver Action:
(a) (U) The Visa Office will collect waiver decisions from USCIS monthly through a Tableau server and post the decisions in SharePoint at: Ineligibility Waiver Report. Make a case note indicating the date USCIS’s decision as reflected on the website, the grounds of ineligibility waived and the month/year of the file that contained the waiver information.
(b) (U) If the applicant filed Form DS-260, Online Application for Immigrant Visa and Alien Registration, note DHS’s waiver approval on the Online IV Application Report using the “Add Remarks” function at the top of the Report. Also note “212(a)(3)(D)(iv)” using the “Annotations” button on the “Visa Info” tab in IVO. Consular sections will not receive a physical copy of the approval record nor is there a need to scan any related documents.
9 FAM 302.5-6(D)(2) (U) Waivers for Nonimmigrants
(CT:VISA-1583; 07-15-2022)
(U) INA 212(a)(3)(D) does not apply to NIV applicants.
9 FAM 302.5-6(E) Unavailable
9 FAM 302.5-6(E)(1) Unavailable
(CT:VISA-2126; 02-13-2025)
Unavailable.
9 FAM 302.5-6(E)(2) Unavailable
(CT:VISA-539; 03-26-2018)
Unavailable.