People often search for this issue as INA 212a3D, 212a3D, or Section 212a3D. These are shorthand references to INA § 212(a)(3)(D), which can make an immigrant inadmissible based on current or past membership in, or affiliation with, the Communist Party or another totalitarian party. This ground applies to immigrants; nonimmigrants are generally not subject to INA 212(a)(3)(D).
INA 212a3D (INA 212(a)(3)(D)) — Membership in a Totalitarian Party
212(a)(3)(D) Membership in Totalitarian Party
What is a ground of inadmissibility?
In order for a foreign national to be admitted to the United States, he or she must be admissible. A foreign national can be deemed inadmissible to the United States by USCIS, CBP and a Consulate. If the foreign national is deemed inadmissible to the United States, he or she cannot enter without a waiver of inadmissibility or a determination that the inadmissibility charge was made in error.
212(a)(3)(D) Inadmissibility due to Membership in Totalitarian Party
Foreign nationals applying to enter as an immigrant may be inadmissible if he or she is or has been a member of or affiliated with the Communist or any other totalitarian party.
Any immigrant 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 inadmissible.
How to obtain a determination that the 212(a)(3)(D) ground of inadmissibility was incorrectly made.
No matter which US government agency made the inadmissibility determination, each provides a method to dispute the determination, though each has drastically different processing times. We have achieved successful outcomes by petitioning the US Department of State where the determination was made by the Consulate in as little as 2 weeks. CBP quotes turnaround times of as little as 30 days and USCIS will not offer a time frame. In our experience, the more difficult the situation, the longer it will take to get resolved.
INA 212a3D exceptions and exemptions (involuntary, age, necessity, and past membership)
INA 212a3D (INA 212(a)(3)(D)) has important statutory exceptions. Whether an exception applies depends on the facts, how the membership occurred, and how long ago it ended.
Exception for involuntary membership
A person is not inadmissible under INA 212a3D if the membership or affiliation was involuntary. This often comes up where membership was coerced or effectively required under the circumstances.
Exception for membership only under age 16
A person is not inadmissible under INA 212a3D if the membership or affiliation occurred solely when the person was under 16 years of age.
Exception for membership required for essentials of living
A person is not inadmissible under INA 212a3D if the membership or affiliation was necessary to obtain essentials of living, such as employment, food rations, or other basic necessities.
Exception for past membership (termination of membership)
A person may avoid inadmissibility under INA 212a3D if the membership or affiliation terminated long enough before the visa/admission application. The statute uses two different timelines depending on the circumstances:
- At least 2 years before the application in many situations; or
- At least 5 years before the application for certain individuals tied to a governing/controlling totalitarian party.
These exceptions are fact-specific. The best approach is to document the exact dates of membership, the nature of the organization (and any subdivision/affiliate), the circumstances of joining, and the reason membership ended, with corroborating records where possible.
Frequently asked questions about INA 212a3D (212(a)(3)(D))
What is INA 212a3D?
INA 212a3D (INA 212(a)(3)(D)) is the “totalitarian party” ground of inadmissibility. It can apply to immigrants based on current or past membership in, or affiliation with, the Communist Party or another totalitarian party.
Does Communist Party or youth league membership always make someone inadmissible?
Not always. The law includes exceptions for involuntary membership, membership only while under age 16, and membership required to obtain essentials of living. In addition, past membership may not trigger inadmissibility if it ended long enough before the visa/admission application, depending on the facts.
What does “membership or affiliation” mean for 212a3D?
USCIS and consular officers look at what the organization is, what your role was, whether participation was meaningful, and whether the facts show actual membership or affiliation rather than incidental contact. The details and documentation matter.
Can INA 212a3D be waived?
Sometimes. In limited circumstances, USCIS may approve a discretionary immigrant waiver if the applicant qualifies and the case meets the applicable standard (for example, humanitarian purposes, family unity, or public interest), and the applicant is not a security threat. Waiver eligibility is fact-specific.
What evidence should be included to address a 212a3D concern?
Helpful evidence often includes a clear timeline of membership dates, how and why membership began, whether it was voluntary, the nature of the organization/subdivision, the person’s activities/role, when and how membership ended, and corroborating records where available.
Where does 212a3D come up in real cases?
It most often comes up in immigrant visa processing (DS-260) and adjustment of status (I-485) when the applicant is asked about membership in the Communist Party or any totalitarian party, including related youth organizations in some countries.
News Related to INA § 212(a)(3)(D)
| Date | Title | Details | ||
|---|---|---|---|---|
| October 1, 2020 | USCIS Policy Manual | This ground of inadmissibility applies specifically to immigrants. Nonimmigrants are not subject to INA 212(a)(3)(D) but may be found inadmissible under other provisions if applicable. |
