Visa Lawyer Blog
The Trump administration is setting their sights on a new enemy: students and researchers of the People’s Republic of China. A new presidential proclamation, “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China,” issued on May 29, 2020, will temporarily suspend the entry into the United States of Chinese nationals seeking to enter the United States on an F or J visa to study or conduct research in the United States, except for student seeking to pursue an undergraduate course of study. The proclamation goes into effect at 12:00 pm (ET) today June 1, 2020 and will remain in effect until terminated by the President.
Specifically, the proclamation limits the People’s Liberation Army’s (PLA) ability to misuse nonimmigrant F student and J researcher visa programs.
Who will be suspended?
F or J Chinese nationals entering to study or conduct research in the United States and who either
- Currently “receive funding from or who currently is employed by, studies at, or conducts research at or on behalf of… an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy’,” or
- In the past “has been employed by, studied at, or conducted research at or on behalf of… an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy'”
The proclamation defines “military-civil fusion strategy” as “actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.”
Section 1 exempts F and J undergraduate students from the proclamation. In addition, graduate students and researchers are also exempt from the proclamation if they do not have any of the specific current or past funding, employment, study, or research nexuses with “an entity in the PRC that implements or supports the PRC’s ‘military-civil fusion strategy’.”
Why the Proclamation?
The proclamation was issued to protect the country’s national and economic security from attempts by the People’s Republic of China “to illicitly acquire American technology and intellectual property from our academic institution and research facilities for Chinese military ends.”
According to the Department of State, “[the country’s] concern is with the malign actions of the Chinese Communist Party and specific individuals, not with the Chinese people.” These actions were made as “a direct consequence of PRC government strategies and policies that exploit the access of some of China’s brightest graduate students and researchers, in targeted fields, to divert and steal sensitive technologies and intellectual property from U.S. institutions, taking undue advantage of our [country’s] open and collaborative academic and research environment.”
The U.S. government is particularly concerned that U.S. graduate students and researches will be targeted, co-opted, and exploited by the government of the People’s Republic of China for military gain.
Additional Exemptions
Section 1 of the executive order also does not apply to:
- Individuals “studying or conducting research in a field involving information that would not contribute to the PRC’s military‑civil fusion strategy, as determined by the Secretary of State and the Secretary of Homeland Security, in consultation with the appropriate executive departments and agencies (agencies)”
- U.S. lawful permanent residents
- Spouses of United States citizens or lawful permanent residents
- Members of the United States Armed Forces and their spouse and children
- Individuals “whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements”
- Individuals “whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees, based on a recommendation of the Attorney General or his designee”
- Individuals “whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.”
Enforcement
The Secretary of State will implement the proclamation as it applies to visas “pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish in the Secretary of State’s discretion.” The Secretary of Homeland Security will implement the proclamation “as it applies to the entry of aliens pursuant to such procedures as the Secretary of Homeland Security, in consultation with the Secretary of State, may establish in the Secretary of Homeland Security’s discretion.”
Additional Measures under Section 6 of the proclamation:
- “The Secretary of State shall consider, in the Secretary’s discretion, whether nationals of the PRC currently in the United States pursuant to F or J visas and who otherwise meet the criteria described in section 1 of this proclamation should have their visas revoked pursuant to section 221(i) of the INA, 8 U.S.C. 1201(i).”
- “Within 60 days of the effective date of this proclamation, the Secretary of State and the Secretary of Homeland Security, in consultation with the heads of appropriate agencies, shall review nonimmigrant and immigrant programs and shall recommend to the President, through the Assistant to the President for National Security Affairs, any other measures requiring Presidential action that would mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.”
- “The Secretary of State and the Secretary of Homeland Security shall consider issuing updated regulations and guidance, as appropriate, implementing the inadmissibility provisions in section 212(a)(3)(D) of the INA, 8 U.S.C. 1182(a)(3)(D).” [NAFSA note: this provision is the “Immigrant membership in totalitarian party” ground of inadmissibility that applies to immigrant visa applicants, but not to nonimmigrant visa applicants.]
For more information about this proclamation please click here.
Why the update?
In the wake of the Coronavirus, on March 20th USCIS announced the temporary suspension of premium processing service for all Form I-129 and I-140 petitions.
Petitioners who had already filed Form I-129 or Form I-140 using the premium processing service before the March 20 suspension, but received no action and a refund, may refile their Form I-907 consistent with the timeline above, barring any changes USCIS may announce in the future.
For more information please click here.
Did you Know?
We have created a new facebook group answering all of your questions regarding the changing developments in immigration law and COVID-19 related updates. Follow us there!
For even more immigration information related to COVID-19 please visit our Immigration and COVID-19 Resource Center here.