Client Approval: I-601 Waiver Approved under INA 212(a)(3)(D)(iv) for Community Party Membership

Client Approval: I-601 Waiver Approved under INA 212(a)(3)(D)(iv) for Community Party Membership

Our office recently received approval for the I-601 Application for Waiver of Grounds of Inadmissibility for a Chinese national deemed inadmissible pursuant to INA Section 212(a)(3)(D).  Our client is the Chinese father of a U.S. citizen daughter who was found inadmissible at his adjustment of status interview due to membership in a Community Party. His wife, on the other hand, was subsequently approved for U.S. lawful permanent residence.

Our office was then contacted by his U.S. citizen daughter to prepare an urgently needed I-601 waiver so that her father could be allowed to remain in the United States and stay united with his wife and family.

INA Section 212(a)(3)(D) deems inadmissible any immigrant who is or has been a member of or affiliated with the Community or any other totalitarian party, domestic, or foreign.

Three exceptions apply:

INA Section 212 (a)(D)(ii) Exception for involuntary membership. – Clause (i) 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.

INA Section 212 (a)(D)(iii) Exception for past membership. – Clause (i) 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-

(I) the membership or affiliation terminated at least-

(aa) 2 years before the date of such application, or

(bb) 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

(II) the alien is not a threat to the security of the United States.

INA Section 212 (a)(D)(iv) Exception for close family members. – The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) 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.

There is also a judicially created exception that states that an alien is admissible if his or her membership is “not meaningful.” The U.S. Supreme Court elaborates that membership is “not meaningful” if the alien lacks “commitment to the political and ideological convictions of communism.” Rowoldt v. Perfetto, 355 U.S. 115 (1957).

As we do with all of our waiver cases in which more than one exception or waiver applies, we presented evidence that our applicant meets the legal standard for every relevant and applicable exception and waiver.  While this is significantly more work for us and not standard practice for some attorneys, we always do our utmost to maximize the probability of approval for our clients at no additional cost.

Specifically, we presented compelling evidence that our client’s membership in the Community Party was involuntary and “not meaningful.”  Such evidence included affidavits from former colleagues corroborating how meaningless our client’s membership in the Community Party was.

We also stressed that our client’s membership in the Communist Party was primarily maintained to ensure job security.  We cited objective academic research that found that membership in the Communist Party had a significant impact on increasing upward mobility in employment, and on decreasing the risk of downward mobility or discharge.  According to the research we cited, overall, Party Membership accounted for a swing of 30% in the likelihood of a party member experiencing upward or downward mobility, compared to a non-party member (with the non-party member bearing the greater risk of negative employment outcome).

We also engaged in an in-depth discussion of how the admission of our client serves the humanitarian purposes of the United States government; promotes the principle of family unity with his U.S. lawful permanent resident wife and U.S. citizen daughter (and U.S. citizen grand-daughter); and that it is in the public interest of the United States to allow our client to be admitted for U.S. lawful permanent residence.

This discussion also included a comprehensive illustration of the extreme hardships that our client’s lawful permanent resident wife would suffer should she be separated from her husband of 41+ years (or alternatively, forced to return to China and be separated from her U.S. citizen daughter and grand-daughter).

Based on our expedited preparation of the waiver and filing, the I-601 waiver was approved within 1 month of submission to the USCIS.  This tight-knit family will now be allowed to lawfully settle together in the United States.