A new crackdown on membership in, or affiliation with, the Communist Party will have an outsized impact on Chinese intending immigrants, since Communist Party membership is required for most Chinese wishing to advance their careers.
On October 2, 2020, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to address inadmissibility based on membership in or affiliation with the Communist Party or any other totalitarian party—including any subdivision, or affiliate, domestic or foreign—unless otherwise exempt. Although the new guidance adheres to existing U.S. immigration law, it appears to direct immigration officers to enforce the law more strictly and provides step-by-step instructions for immigration officers making such inadmissibility determinations. A new section in the USCIS Policy Manual provides guidance to USCIS officers on how to adjudicate inadmissibility on these grounds in the context of adjustment-of-status applications.
All is not lost for such intending immigrants, however. There are important exceptions. For example:
- Affiliation does not include simply sympathy for or interest in the Communist Party or other totalitarian party. The person must have taken action that provides concrete support.
- An exception for past membership is possible if the person can demonstrate to the consular officer that it has been at least five years since the person’s membership or affiliation ended and that the person is not a security threat.
- Non-voluntary or non-meaningful membership is also excepted, such as for children under 16 or if membership was a prerequisite for obtaining essentials of living (e.g., employment or food rations).
- Limited humanitarian or public-interest waivers are available for immigrant parents, spouses, children, and siblings of U.S. citizens and permanent residents (not available for nonimmigrants).
For advice in specific situations, contact your Miller Mayer attorney.