INA 212(a)(3)(D) – Membership in Totalitarian Party – 212(a)(3)(D)

INA 212(a)(3)(D)

Membership in Totalitarian Party

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212(a)(3)(D) Membership in Totalitarian Party

What is a grounds 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 due 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.

This section shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

This section shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation terminated at least 2 years before the date of such application, or 5 years before the date of such application, 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 such date, and the alien is not a threat to the security of the United States.

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.

How to obtain a 212(a)(3)(D) waiver

There are two types of waivers that apply to each grounds of inadmissibility: one for immigrants and one for nonimmigrants. Immigrants are foreign nationals who are trying to obtain an immigrant visa or green card. Nonimmigrants are foreign nationals who are trying to obtain or enter with a temporary visa such as a B2 tourist visa, F1 student visa or H1B work visa, among others. Some grounds of inadmissibility allows both immigrant and nonimmigrant waivers, some allow one and some offer no waiver at all.

Many people who are faced with a inadmissibility determination believe that they will never be able to obtain a waiver or enter the US again. This is simply not true. For almost all types of inadmissibility classes, a waiver is available and there is always an option to challenge the determination. We have successfully helped many clients who were determined to be inadmissible and we can assist you. We believe that with the right approach, there is always a hope to win your case.

Nonimmigrant Waiver

212(a)(3)(D) inadmissibility only applies to foreign nationals applying as immigrants.  Membership in a totalitarian party is not a bar to a nonimmigrant visa and therefore no waiver is required.

Immigrant Waiver

The Attorney General may, in the Attorney General’s discretion, waive 212(a)(3)(D) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence 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.

Paths for a Waiver of Inadmissibility

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