U.S. State Department Stiffens the Bar on Immigrant Visas for Communist Party Members

Introduction

The U.S. State Department has updated its Foreign Affairs Manual (FAM) to toughen the statutory bar on issuance of immigrant visas to communist party members and affiliates. In short:

1. Nonmeaningful membership: The new FAM version deletes prior references to Supreme Court precedent stating that the bar does not apply if the applicant’s ties to the party were nonmeaningful, in that the applicant “had [no] commitment to the political and ideological conviction of communism.”
   
2. Venezuela: The new FAM provisions cover not only “communist” but also “socialist” parties, such as the United Socialist Party of Venezuela.
   
3. Ideological exclusion: The new FAM provisions bar people for purely ideological reasons, such as “advocacy for, solidarity with, or endorsement of” communist ideology.
   
4. State-owned enterprise employees: The new FAM provisions “generally” bar employees of state-owned enterprises, nongovernmental organizations, and quasi-governmental organizations in communist countries.
   
5. Government employees: The new FAM provisions bar persons with “executive-level” responsibilities in communist governments, even if those responsibilities are not political.
   
6. Essentials of living: The new version of the FAM deletes the former exemption from the bar for individuals joining the party because it was necessary to access higher education or “employment commensurate with [their] educational background and experience.”

What is the Foreign Affairs Manual?

The Foreign Affairs Manual (FAM) is the official compilation of policies, procedures, and organizational responsibilities for the U.S. Department of State. It serves as a key reference for, among others consular officers, who are required to follow its provisions.

What Does the Statute Say?

Section 212(a)(3)(D) of the Immigration and Nationality Act (INA) reads as follows:

How Does the Revised FAM Change the State Department’s Interpretation of the Statute?

The revised text of 9 FAM 302.5-5(A) (06-10-2025) reinterprets INA § 212(d)(3) in various ways to stiffen the bar on issuance of immigrant visas for persons with ties to the communist party.

Non-Meaningful Association

Gone is the prior FAM version’s analysis that association with the communist party falls within an exception for nonmeaningful association if “the applicant had [no] commitment to the political and ideological conviction of communism.” 9 FAM 202.5-6(B)(6) (06-13-2024).

Prior FAM versions recognized that the statutory bar does not cover “applicants whose association with a proscribed organization is or was non-meaningful.” 9 FAM 302.5-6(B)(2) (06-13-2024). Non-meaningful association is a judicially create concept. 9 FAM 202.5-6(B)(6) (06-13-2024). The related judicial opinions interpret the definitions of “membership” and “affiliation.” The prior FAM explained that what those judicial opinions have in common is that “the applicant had [no] commitment to the political and ideological conviction of communism.” Id. Here is a summary of the leading case, as it used to be described in the FAM:

The Supreme Court held in Rowoldt v. Perfetto (355 U.S. 115, 1957) that an applicant’s connection with a proscribed organization must constitute a meaningful association, and that membership was not present when the dominating impulse to the affiliation was wholly devoid of any political implications. This modified the ruling in Galvan v. Press (347 U.S. 522, 1954) that membership was present if there is a substantial basis for finding that an applicant consciously committed himself or herself to the Communist Party by joining an organization known as the Communist Party which operates as a distinct and active political organization

9 FAM 202.5-6(B)(6) (06-13-2024).

Rowoldt v. Perfetto involved a man who had attended U.S. Communist Party meetings and paid dues for about a year. He worked at a bookstore run by Party. He stated that his purpose in joining the Party was “to get something to eat for the people.” “We had to fight for something to eat and clothes and shelter” by petitioning the city, state, and national governments on topics such as unemployment laws. He denied opposing democratic principles. He denied any commitment to violence or to the Party’s non-democratic goals. His explanation of the principles of Communism was not sophisticated–it was “unilluminating” in the view of the Court.

In holding that the government had not proven Rowoldt’s membership, Justice Frankfurter stated that membership requires a “commit[ment]” or “meaningful association”:

There must be a substantial basis for finding that an alien committed himself to the Communist Party in consciousness that he was “joining an organization known as the Communist Party which operates as a distinct and active political organization,” [citing Galvan,] 347 U. S., at 528….

[W]e cannot say that the unchallenged account given by petitioner of his relations to the Communist Party establishes the kind of meaningful association [required to establish membership within the meaning of the Act] ….

[T]he dominating impulse to his “affiliation” with the Communist Party may well have been wholly devoid of any “political” implications.

355 U.S. at 120.

The current version of the FAM virtually ignores this Supreme Court precedent, instead instructing consular officers:

In general, membership in the communist … party is intentional and a member or affiliate … is aware of the party’s political nature…. If you encounter a case wherein you doubt whether an applicant was meaningfully joining a proscribed party, send an inquiry to the VO [Visa Office] for further guidance.

9 FAM 302.5-6(B)(5)(j) (06-10-2025).

In recent years, many IV applicants have argued that they are not covered by the statutory bar because their association with the Chinese Communist Party (CCP) is non-meaningful, in that the joined to advance their educational opportunities (e.g., to get scholarships) or career prospects, while participating in minimal Party activities, receiving only minimal benefits due to their membership, and not believing in communist ideology. Many such cases do seem to fall within the scope of the holding in Rowoldt v. Perfetto, as previously summarized by the State Department: an applicant’s association does not constitute “membership” or “affiliation” if “the applicant had [no] commitment to the political and ideological conviction of communism.”

Such arguments appear to be foreclosed by the revised FAM, with the possible exception that an inquiry to the Visa Office may be considered. No guidance is given about the criteria to be used by the Visa Office in adjudicating such cases.

Definition of “Affiliate” Broadened to Include “Socialist” Parties, Such as Venezuela’s Ruling Party

The new FAM states that “Parties that are ‘socialist’ in name or political philosophy, or otherwise advocate communist political philosophy such as the collectivization of private property and the means of production” count as the “affiliates” of a communist
party, so membership or affiliation with such parties is covered by the statute. The FAM gives the examples of Socialist Unity Party of Germany, the Workers’ Party of Korea, the Korean Social Democratic Party, and the United Socialist Party of Venezuela. 9 FAM 302.5-6(8)(4) (06-10-2025).

Purely Ideological “Affiliation” Is Covered

The statute covers not just membership in the communist party but also “affiliation” with it. INA § 101(e)(2) gives a partial definition of “affiliation”:

The giving, loaning or promises of support or of money or any other thing of value for any purpose to any organization shall be presumed to constitute affiliation therewith; but nothing in this paragraph shall be construed as an exclusive definition of affiliation.

The prior FAM version did not ban persons based solely on their ideology:

Affiliation Requires Positive Action: A mere intellectual interest in, sympathy for, or favoring the ideologies of the Communist or other totalitarian party does not constitute affiliation with such organization unless accompanied by some positive and voluntary action that provides support, money, or another thing of value.

9 FAM 302.5-6(B)(4)(e)(3) (06-13-2024).

But the revised FAM does just that:

Affiliation Does Not Require Positive Action: 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)(4) (06-10-2025).

Affiliation Due to Employment in Communist Government, Government Controlled Institutions, Military, State-Owned Enterprises

• Employment in a communist government or government-controlled organization in a position with “political or executive-level responsibilities” now 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. In contrast, under the prior FAM version, employment in a communist government in only a “political capacity” constituted affiliation with the party. There was no reference to employment with “executive-level responsibilities.” 9 FAM 302.5-6(B)(4)(f)(1) (06-13-2024). Also, the prior FAM version explicitly stated that “rank-and-file government workers” are not covered. 9 FAM 302.5-6(B)(3)(f)(1) (06-13-2024). It is unclear whether that provision was deleted or redacted.

• Service in the armed forces of a communist country now “does” constitute affiliation if it is “continuing” or in a “higher rank (e.g., the officer corps).” 9 FAM 302.5-6(B)(4)(f) (06-10-2025). Previously, such service “could” constitute affiliation. 9 FAM 302.5-6(B)(4)(g) (06-13-2024).

• A new provision states that: “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).

Association with the Part in order to Obtain Essentials of Living

The statutory bar on issuing IVs includes an exception for persons whose association with a proscribed organization was involuntary, including if association was “necessary” for “obtaining employment, food rations, or other essentials of living.”

The new FAM version 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).

The prior FAM version defined essentials more vaguely as employment, food, etc. necessary for “a minimum standard of civilized life.” 9 FAM 302.5-6(B)(7)(e)(1)(B) (06-13-2024).

The prior FAM version further stated that the essentials of life include “employment commensurate with [one’s] educational background and experience.” 9 FAM 302.5-6(B)(7)(e)(3) (06-13-2024).

And, unlike the current FAM version, the prior version explicitly referred to access to higher education as one of the essentials of life. 9 FAM 302.5-6(B)(7)(e)(2) (06-13-2024).

Use of a Service Passport as a Sign of Affiliation

The new FAM version states that possession of a diplomatic, special, or service passport issued by a communist government “suggests” affiliation with the communist party. 9 FAM 302.5-6(B)(4)(f)(3) (06-10-2025).

The seems to indicate a relaxation of the prior FAM version, which states that possession of such passport “raises the probability” of such affiliation. 9 FAM 302.5-6(B)(3)(f)(3) (06-13-2024).