Communist Party Membership or Affiliation Makes Some Ineligible for U.S. Green Card and Citizenship

The Chinese Communist Party (CCP) has maintained a political monopoly in China’s mainland since Mao Zedong founded the People’s Republic of China in 1949. The Party comprises over 100 million members, about 10% of China’s adult population.

This article discusses how the U.S. Immigration and Nationality Act makes certain CCP members and affiliates ineligible for permanent residence and citizenship.

A Brief History

The Internal Security Act of 1950 was the first statute to explicitly make communist party membership a ground for inadmissibility (i.e., ineligibility for visa issuance, admission to the United States, or adjustment to permanent resident status). At that time, the Cold War was heating up. The Soviet Union consolidated its influence over Eastern Europe. The CCP had gained control over mainland China in 1949, forcing the Nationalists to retreat to Taiwan. The Korean War broke out in 1950.

The Internal Security Act’s stated purpose was to cope with espionage and violence associated with efforts to “establish a Communist totalitarian dictatorship” in the U.S. and throughout the world. The Act designated communist party membership as a basis not just for inadmissibility but also for deportation and denial of naturalization. Most controversially, the Act required American Communist Party members to register with the Attorney General and called for investigations into Communist-front organizations so they could be required to register as a precursor to placing them in detention camps in time of emergency. President Truman vetoed the bill, commenting that “The basic error of this bill is that it moves in the direction of suppressing opinion and belief…that would make a mockery of the Bill of Rights and of our claims to stand for freedom in the world. Nevertheless, Congress overrode Truman’s veto, and the bill became law.

Ineligibility for Permanent Residence

Generally speaking, “membership” in “the Communist or any other totalitarian party” makes a person ineligible for a green card. INA § 212(a)(3)(D)(i). See INA § 101(a)(37) (defining “totalitarian party”).

So does membership in any organization “affiliate[d]” with such a Party. INA § 212(a)(3)(D)(i). In China, such organizations include minor political parties and mass organizations (e.g., Communist Youth League, All-China Federation of Industry and Commerce, All-China Federation of Trade Unions, All-China Women’s Federation). Such organizations are led by the Party, which uses them to penetrate the society at large and encourage popular support for Party policies. Robert L. Worden, et al, China: A Country Study (GPO 1987), http://countrystudies.us/china/107.htm.

For example, the Communist Youth League (中国共产主义青年团) is an organization for youth between ages 14 and 28. The CYL is organized on the Party model. Its goal is to train youth to practice socialism and communism. Although CYL membership is not required for full Party membership, it does facilitate the path. CYL has over 70 million members. Most high school graduates are CYL members.

Further, a person who is not a member of the Party or any other proscribed organization is ineligible for a green card if they have been “affiliated with” the Party or one of these other organizations. INA § 212(a)(3)(D)(i).  “Voluntary service” in a “political capacity” constitutes “affiliation with” the Party. 22 C.F.R. § 40.34(c). Voluntary service includes employment in the government or armed forces:

• In determining whether services in the armed forces is in a “political capacity,” U.S. immigration authorities should consider whether the individual “occup[ies] a sufficiently high rank in the armed forces … that is inherently political or perform[s] a specific mission that is inherently political.” 8 USCIS-PM F.3(A)(4). According to the State Department, service in the armed forces constitutes affiliation with the ruling party if the service is “continuing” or in a “higher rank (e.g., the officer corps).” 9 FAM 302.5-6(B)(4)(f) (06-10-2025).
• Employment in a communist government or government-controlled organization in a position with “political or executive-level responsibilities” constitutes affiliation with the communist party. 9 FAM 302.5-6(B)(4)(f)(1) (06-10-2025). No definition of “executive-level” is provided.
• “State-owned enterprises, nongovernmental organizations and quasi-governmental organizations in Communist or Communist-controlled countries are often instruments of the ruling party used by the party to control civil society and carry out political objectives. Such employment or association will generally constitute affiliation with a proscribed party.” 9 FAM 302.5-6(B)(4)(h) (06-10-2025).
• Possession of a diplomatic, special, or service passport issued by a communist country may be an indication of “affiliation.” 9 FAM 302.5-6(B)(4)(f)(3) (06-10-2025).
• Advocacy for, solidarity with, or endorsement of the ideologies of the Communist or other totalitarian party constitutes affiliation with such an organization. 9 FAM 302.5-6(B)(4)(e)(3) (06-10-2025).

But there are three important exceptions to ineligibility. First, a person is admissible if the membership or affiliation terminated at least five years before the date of application. INA § 212(a)(3)(D)(iii) (or 2 years in the case of a country where the Communist Party doesn’t control the government). At least in theory, a member is free to withdraw from the CCP. CCP Const., art. 9. Also, the Party can deem a person to have withdrawn due to inactivity. Id. Specifically, a Party member who fails to take part in regular Party activities, pay membership dues or do work assigned by the Party for six successive months without good reason may be regarded as having given up membership. Id. But “termination” of membership for purposes of the Immigration and Nationality Act does not require following Party rules for resignation. It is enough if the evidence shows that the individual intended to end their relationship with the Party. Jencks v. United States, 353 U.S. 657, 679 (1957) (Burton, J. concurring, joined by Harlan, J., and Frankfurter, J.), quoted in Killian v. United States, 366 U.S. 231, 249 (1961).

Second, a person is admissible if membership or affiliation is involuntary. Generally speaking, membership or affiliation is considered involuntary when it is the result of factors such as coercion, fraud, duress, incapacity, or some other error which may impair or negate the capacity for affirmative and intentional actions. 8 USCIS-PM F.3(D)(1). This includes membership or affiliation “solely when the alien is under 16 years of age” or where “necessary” for purposes of obtaining employment, food rations, or other “essentials” of living. INA § 212(a)(3)(D)(ii). The U.S. State Department focuses on the meaning of “essentials,” defining it as the “minimum level” of employment, food, etc. “routinely available to the rest of the population.” If the applicant’s association with the party was to seek greater economic advantages, they do not fall within the exception. 9 FAM 302.5-6(8)(6)(e)(2) (06-10-2025). In China, it may be difficult to prove that CCP membership is “necessary” to obtain the essentials of life because alternatives to CCP membership are clearly better today than they were in the 1970s. In particular, private entrepreneurship has become an increasingly viable alternative to Party membership. In China, many non-CCP members succeed in business, have security of person, benefit from the country’s economic growth, and so on.

Third, a person is admissible if his or her association with the Party is “nonmeaningful.” This is a judicially-created rule interpreting what “membership” and “affiliation” mean. The leading case, Rowoldt v. Perfetto, was about a man who for about a year paid dues to the U.S. Communist Party, attended meetings, petitioned the government related to unemployment laws and the government budget, worked at a Party bookstore, and stated that his purpose in joining the party was to get jobs, food, clothes, and shelter for the people. 355 U.S. 115 (1957). He denied opposing democratic principles. He denied any commitment to violence and denied that violence was discussed at any meetings he attended. His Party membership ended only when he was arrested and charged with being deportable due to his membership. The Supreme Court held that he qualified for the non-meaningful association exception because his understanding of party’s principles as “unilluminating” and the “dominating impulse” of his affiliation with the party was “wholly devoid” of any “political implications.” The U.S. State Department previously summarized the nonmeaningful exception as applying to persons who lack “commitment to the political and ideological convictions of communism.” Former 9 FAM 302.5-6(B)(6).

USCIS and the State Department in the past have found that some persons listed as members on the CCP rolls were not “members” within the meaning of the Immigration and Nationality Act because their ties to the Party were nonmeaningful. Since the 1980s, when reform policies brought great improvements to China’s standard of living, traditional Communist ideology has been overturned by contrary slogans such as “To get rich is glorious,” a saying attributed to former paramount leader Deng Xiaoping. The CCP continues to pay lip service to Marxist-Leninist ideology, but ideology has become a post hoc rationalization device. Deng also said, “It doesn’t matter if a cat is black or white so long as it catches the mouse.” Instead, Party membership is sometimes sought because the CCP is “a sort of Rotary Club of 70 million people who joined in because it’s good for their careers.” See David L. Shambaugh, China’s Communist Party: Atrophy and Adaptation 25 (2008), quoting Harvard Professor Rod MacFarquhar. The Party is a mutually advantageous social network that distributes favors and privileges (guanxi) to its members. Mere membership in the party also signals elite status to potential government or private employers. It’s “shorthand for being an excellent person.” See Jamil Anderlini, et al., Welcome to the Party!, FT Magazine (Sept. 28, 2012). Membership is also a hedge against political risk, not unlike emigration.

However, the Trump administration has, in my opinion, flouted the courts by ignoring the courts’ interpretation of the statutory meaning of “membership” and “affiliation” as excluding those with nonmeaningful ties. Instead, USCIS policy is that all that is required for ties to be “meaningful” is that they are “intentional,” in that the individual is “conscious” they are joining a political organization “known as the Communist Party.” 8 USCIS-PM F.3(B)(5). The State Department’s current policy is similar. 9 FAM 302.5-6(8)(6)(j) (06-10-2025).

Finally, in addition to these exceptions to ineligibility, there is also a waiver available in the case of the parent, spouse, son, daughter, brother, or sister of a U.S. citizen; or the spouse, son, or daughter of a lawful permanent resident. The applicant waiver must be “for humanitarian purposes, to assure family unity, or otherwise in the public interest.” The applicant must not be a threat to U.S. security and must merit a positive discretionary finding. INA § 212(a)(3)(D)(iv).

Procedurally speaking, the government asks about communist party membership in the immigrant visa application form (DS-260) and the adjustment application form (I-485). The applicant and counsel should be prepared for related questions during the interview and should document eligibility for a waiver or the applicability of an exception to the ground of inadmissibility. A legal brief is helpful.

Immigrant visa applicants also need to be prepared for possible delays while the consular officer seeks a security advisory opinion from the Department of State in Washington, DC. Former 9 FAM 40.34 N3.3-1, N4.3, N4.4.

Ineligibility for Citizenship

To apply for naturalization, an applicant must prove he or she is loyal to the principles of the U.S. Constitution and the basic form of government of the United States. INA § 316(a); 8 C.F.R. § 316.11(a).

A person is ineligible for naturalization if he or she

• has been a “member” or “affiliate” of a communist party or totalitarian party or of any organization affiliated with such party;
• advocates the doctrines of world communism or the establishment of a totalitarian dictatorship in the United States; or
• writes, publishes, or circulates printed matter advocating the doctrine of world communism of the establishment of a totalitarian dictatorship in the United States.

INA § 313(a).

There are exceptions for persons whose membership “terminated” more than 10 years before applying for naturalization and for “involuntary” membership or affiliation. INA § 313(c), (d). There is also a judicially-created exception for “nonmeaningful” ties that do not amount to “membership” or “affiliation.” Crosby v. Miller, 2020 U.S. Dist. LEXIS 20123 (D. Or.); Legacy INS Interpretations 313.2(c).

The author, Gary Chodorow, represents businesses, families, and others in U.S. visa, permanent residence, and nationality matters. He also writes the Law and Border Blog at LawAndBorder.com. You are invited to schedule a consultation to discuss how Chodorow Law Offices can help with your immigration or naturalization case.