The United States has strict regulations regarding the admission of foreign nationals with membership or affiliations with the Communist Party or any totalitarian group. A green card applicant must demonstrate support for the U.S. Constitution and a willingness to accept its principles. Current or previous ties to the Communist Party may indicate an opposition to the U.S. Constitution. Therefore, membership or affiliation will generally make a green card applicant inadmissible to the United States. This means they are not permitted to enter the United States or obtain permanent resident status.
Whether an EB5 investor’s green card application will be denied due to past or present affiliations depends on their level of involvement. There are several exceptions that, if met, can waive an EB5 investor’s inadmissibility due to membership or affiliation with the Communist Party. An investor can qualify for an exception if they establish that:
- Their membership or affiliation was involuntary;
- Their membership or affiliation ended before they turned 16 years old;
- Their membership or affiliation was necessary to obtain employment, food rations, or other essentials of living;
- Their membership or affiliation ceased at least two years before the date of applying for a Green card if the membership or affiliation was with a party controlling the government where the applicant was a member/affiliate; or at least five years before applying if the membership was separate from any government-controlled party.
Additionally, the U.S. Supreme Court established an exception for non-meaningful associations in Rowoldt v. Perfetto, 355 U.S. 115 (U.S. 1957). This encompasses associations where the applicant demonstrates a lack of commitment to the political and ideological convictions of communism. If an EB5 investor does not qualify for any of the above exceptions, they may still be eligible for an exception if they are a close family member of a U.S. citizen or U.S. permanent resident. This would be in the form of a waiver for humanitarian purposes, family unity, or in the public interest of the United States.
To prepare a strong green card application, EB5 investors with any past or present involvement in the Communist Party should work with an experienced immigration attorney. An attorney can help gather any necessary evidence to show that the applicant qualifies for an exception.
