CCP Waivers and Ineligibility

[david_dawei]

If an applicant is a current or former member of the Chinese Communist Party, we request that they fill out a questionnaire, which we provide. This questionnaire has detailed questions about the nature of the applicant's membership in the Communist Party. Based on the answers to these questions, we then consult with D.C. in making a decision on whether or not an applicant's membership in the party makes them ineligible for a visa.

 

If an applicant quit the party over five years ago, it can relive him or her of the ineligibility.?

 

Sincerely,

 

Immigrant Visa Unit, U.S. Consulate, Guangzhou, China

172120

 

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Government:

 

Classes of Aliens Ineligible to Receive Visas

Ineligibility

 

9FAM Visas

9FAM Visa

 

9FAM 40:34 Notes (Refusal Categories)

9FAM 40:34 Notes

 

9FAM 40:34 Procedure Notes (Refusal Categories)

9FAM 40:34 Procedure Notes

 

US Consulate, waiver instructions

http://dhaka.usembassy.gov/immigrant_visas...structions.html

 

I-601 Form:

http://uscis.gov/graphics/formsfee/forms/i-6.htm

 

 

Non-Government:

 

Visa Journey I-601 Forum

Visa Journey Forum

 

I-601 Help:

VisaPro Website

 

601 Forum:

Immigrate2US Forum

 

 

CFL:

 

Waiver update, I-601 (for visa overstay)

http://candleforlove.com/forums/index.php?showtopic=11692

 

Anyone familiar with resubmission of CPC Statement

http://candleforlove.com/forums/index.php?showtopic=17408

 

For those in the CCP-- Managing Risk, CCP--what is the least risky strategy?

http://candleforlove.com/forums/index.php?...18592&hl=waiver

 

Waiver for Ineligibility for CCP members:

http://candleforlove.com/forums/index.php?showtopic=18869

 

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[Excerpts only, see applicable sections for full text:]

 

 

9FAM 40:34 Notes:

 

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 inadmissible under INA 212(a)(3)(D) unless qualifying for one of the exceptions described in 9 FAM 40.34 N4 through 9 FAM 40.34 N6 below.

 

Membership or affiliation is a question of fact for the consular officer to determine. All sources of information should be utilized in making this judgment (see 9 FAM 40.34 N3.3-2 below). Where there are discrepancies between the record and the alien's statements, every effort should be made to resolve the factual issues locally. Any questions that cannot be adjudicated at post regarding the alien's association should be submitted for the Department's advisory opinion.

 

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:

(1) Involuntary (see 9 FAM 40.34 N6.1 below);

(2) Solely when the alien was under 16 years of age (see 9 FAM 40.34 N6.2 below);

(3) Solely by operation of law (see 9 FAM 40.34 N6.3 below); or

(4) Solely for the purpose of obtaining employment, food rations, or other essentials of living (see 9 FAM 40.34 N6.4 below).

 

In determining possible ineligibility, the CO will:

1) First establish whether the immigrant alien was a member or affiliate [of CCP]

2) If such association is found, the question of whether the 2 or 5 years have passed since the membership has terminated will be examined

3) If the membership continued beyond the year exclusions, it will be necessary to consider whether the association may have been non-meaningful or non-voluntary or whether the alien is entitled to seek an individual waiver.

 

 

INA 222(a) requires immigrant visa applicants to respond to questions on the visa application:

(1) Applicant's full and true name, any other name which he or she has used or by which he or she has been known;

(2) Age and sex;

(3) Date and place of birth; and

(4) Additional information necessary to identify the applicant (e.g., organizational memberships).

If an applicant fails to do so, the consular officer should ask him or her those questions.

 

 

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, the consular officer should accept the assertion at face value. The consular officer should reject the alien's assertion only if the officer has controverting evidence or has another articulable reason for doing so.

 

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.

 

 

The Department's security advisory opinion (see section 9 FAM 40.34 PN1) is required prior to visa issuance in any past membership case in which the:

(1) Consular officer has information indicating that the claimed termination of membership did not, in fact, occur;

(2) Consular officer has reason to believe the alien may be a threat to the security of the United States; or

(3) Alien elects to "plead in the alternative" as described in 9 FAM 40.34 N4.3 above.

All other cases involving relief under INA 212(a)(3)(D )(iii) may be adjudicated by the consular officer without reference to the Department.

 

A finding of ineligibility under INA 212(a)(3)(D ) may be based upon evidence available through:

(1) The visa application;

(2) The applicant's statements;

(3) The result of name checks or the Department's security advisory opinion (when applicable); and

(4) A check of post files, CLASS, or Independent Name Check (INC), or any other outside information available.

 

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. A waiver of ineligibility may not be granted to an alien who is a threat to the security of the United States.

 

 

9FAM 40:34 Procedure Notes:

 

Consular officers shall submit INA 212(a)(3)(D )(ii) waiver requests on Form I-601, Application for Waiver of Ground of Excludability making whatever adaptations are necessary; e.g., typing "INA 212(a)(3)(D )(iv)" in the space asking for the ground of ineligibility. Form I-601 should be sent directly to the office of the Department Homeland Security (DHS) having jurisdiction over the consular post.

The consular officer shall interview the alien to establish that the finding of ineligibility is fully in accord with law and regulations and that the qualifying relationship exists. He or she should assist the alien in completing Form I-601, Application for Waiver of Ground of Excludability and in ensuring that the form contains complete and accurate information. The consular officer shall make every effort to process Form I-601 at the time of the formal denial of the visa.

The consular officer shall forward the completed Form I-601, Application for Waiver of Ground of Excludability, and the prescribed fee (see instructions on form) to the appropriate DHS office together with the following attachments:

(1) The complete visa file including the applicant's Form I-130, Petition for Alien Relative, if any, or other evidence that the alien has a qualifying relationship with a U.S. citizen or permanent resident alien;

(2) A memorandum from the consular officer summarizing the information developed from the visa interview pertinent to the alien's ineligibility and qualifications for a waiver; and

(3) A statement from the alien giving the name of the Communist or other totalitarian party to which he or she belongs or belonged, the reasons for joining, the dates of membership, any offices held, why he or she remained a member and the degree to which he or she accepted the structure, goals, methods, and practices of the party, and, if he or she terminated the association, the date of termination and reasons for terminating.

b. The consular officer shall inform the applicant of the disposition of the waiver request, the date on which Form I-601, was mailed to DHS, and the DHS office's address. The consular officer shall instruct the applicant to address any further inquiries directly to the designated DHS office.

 

 

When a waiver is granted under INA 212(a)(3)(D )(iv), DHS will so notify the consular post. The post shall attach the notification to Form DS-230, Application for Immigrant Visa and Alien Registration, and note DHS's waiver approval on Item 35 of Form DS-230. The post shall also note "212(a)(3)(D )(iv)" in the block provided for specifying waiver action on Form OF-155B, Immigrant Visa and Alien Registration.

 

The authority exercised by DHS under INA 212(a)(3)(D )(iv) is discretionary. In cases in which an eligible principal alien decides to precede an ineligible family member to the United States, the consular officer shall ask the principal alien to sign a statement that he or she has been informed that the exercise of DHS's discretionary authority cannot be guaranteed. (See 9 FAM 42.68 Regs/Statutes and 9 FAM 42.68 Notes.) Consular officers must not take the initiative in suggesting the separation of a family in order to place the ineligible alien in a position to apply for a waiver of his or her ineligibility.