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Temporary Visas Waivers / Visa Denials

Trump Suspends Entry of Chinese Students and Researchers: First Impressions

The President has issued a May 29, 2020, Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China.The proclamation appears to be counter-productive, a distraction from real measures needed to fight Beijing’s theft of sensitive technologies, and an attempt to boost Trump’s electoral odds by stoking xenophobia.

President Trump has issued a May 29, 2020, Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China.

From my perspective as an immigration lawyer, the proclamation appears to be counter-productive, a distraction from real measures needed to fight Beijing’s theft of sensitive technologies, and an attempt to boost Trump’s electoral odds by stoking xenophobia.

Summary of the Proclamation

Section 1: Entry as an F (student) or J (exchange visitor), except for “undergraduate study,” is suspended and limited, if the individual has certain ties to an entity that “implements or supports” China’s “military-civil fusion strategy.”

Those ties include:

  • receiving funding;
  • current or prior employment by;
  • current or prior study at; or
  • current or previous research conducted at or on behalf of such entity.

Section 2: The proclamation does not apply to:

  1. persons whose study or research is “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.”
  2. a U.S. lawful permanent resident (i.e., green card holder);
  3. the spouse of a U.S. citizen or lawful permanent resident
  4. members of the U.S. Armed Forces, their spouses, and children
  5. certain persons traveling on United Nations business;
  6. persons 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; or
  7. persons whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.

Section 5: The proclamation is effective June 1, 2020.

Section 6: The State Department shall consider whether Chinese nationals currently in the U.S. “pursuant to F or J visas” should have their visas revoked.

What Is China’s “Military-Civil Fusion” Strategy?

Section 1 defines the term “military-civil fusion strategy”:

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.

Military-Civil Fusion (MCF) is actually much broader than that. It is a national strategy implemented through multiple specific policies with the goal of positioning the country to compete militarily and economically by synchronizing military and economic building efforts by investing in dual use technologies in sectors such as aerospace, advanced equipment manufacturing, artificial intelligence, and alternative sources of energy. President Xi Jingping elevated MCF to a national strategy in 2014 and in 2017, he put himself in charge of the Central Commission for MCF Development. The strategy involves coordination of efforts between private companies, state-owned enterprises, research institutes, universities, and military organizations. The Trump Administration sees MCF as relying heavily on intellectual property theft and as coercive, in that Chinese overseas students and researchers are “at high risk of being exploited or co-opted.”

By using a narrow (and somewhat misleading) definition of MCF, the proclamation at least in theory should only reach individuals with ties to entities working “at the behest” of the PRC: to acquire “foreign technologies” for military use.

What Entities “Implement or Support” MCF Strategy?

Remember the testimony by former FBI Director Christopher Wray that the risk of espionage comes from the “whole” of Chinese society?

The counterintelligence risk posed to U.S. national security from Chinese students, particularly those in advanced programs in the sciences and mathematics… [T]he use of nontraditional collectors, especially in the academic setting, whether it’s professors, scientists, students, we see in almost every field office that the FBI has around the country. It’s not just in major cities. It’s in small ones as well. It’s across basically every discipline.

And I think the level of naïveté on the part of the academic sector about this creates its own issues. They’re exploiting the very open research and development environment that we have, which we all revere, but they’re taking advantage of it. So one of the things we’re trying to do is view the China threat as not just a whole-of-government threat but a whole-of-society threat on their end.

Trump’s proclamation bans entry of persons with ties to any entity that “implements or supports” the MCF strategy (at least so far as it relates to acquiring “foreign technologies”). Under Wray’s logic, that could be any China entity. The proclamation leaves it to the Departments of State to identify such entities but provides no further guidance on what entities are covered.

Likely candidates for entities that implement or support MCF include the “seven sons of national defense,” leading universities with deep roots in the military industry:

UniversitySpecialization
Beijing Institute of TechnologyArmaments and aeronautics
Beihang UniversityAeronautics and astronautics
Harbin Engineering UniversityMaritime technology, nuclear, aeronautics, astronautics, and armaments
Nanjing University of Aeronautics and AstronauticsAeronautics and astronautics
Nanjing University of Aeronautics and AstronauticsAeronautics and astronautics
Nanjing University of Science and TechnologyArmaments
Northwestern Polytechnical UniversityAeronautics, astronautics, maritime technology and armaments

The State Department says, in an Arms Control and International Security Paper, that many Chinese universities have security credentials authorizing research collaboration with the military, making them potential targeted entities under the proclamation:

Since 2009 … more than 150 Chinese universities have
received special security credentials – eagerly sought as a
signal of CCP and central government approval, as well as
an opportunity for profitable work – that entitle them to
conduct classified research and development on weapons
and equipment for the PLA, and such institutions are
critical components of the MCF apparatus.

Such universities include leading national universities, such as Tsinghua University and Peking University.

As to private entities that may be covered by the proclamation, the State Department’s paper says:

The PRC has also established National Defense Science, Technology,
and Industry MCF Innovation Bases around the country, as well as MCF dual-use technology centers, MCF industrial parks, and other joint R&D facilities at which civilian firms and universities partner with defense sector firms and more traditionally defense-oriented universities for collaboration.

Impact on F Students and J Exchange Visitors Currently in the U.S.

  • The proclamation could impact the stays of current F students and J exchange visits because if they depart the U.S. for any reason they may be ineligible for a new visa or reentry.
  • While the proclamation does not apply to “undergraduate study,” it is unclear whether it applies to optional practical training (OPT). So F-1 students applying for a new visa or to reenter for OPT may be barred.
  • Per section 6, the State Department may also determine whether Chinese nationals currently in the U.S. “pursuant to F or J visas” should have their visas revoked. If a visa is revoked, there is no immediate impact on the nonimmigrant status of a person in the U.S., but if they leave they are unable to return without a new visa.
  • The New York Times reports that “visa cancellation could affect at least 3,000 students, according to some official estimates. That is a tiny percentage of the approximately 360,000 Chinese students in the United States.” The broad and vague wording of the proclamation will cause anxiety among many more current students and exchange visitors about whether they are covered. The proclamation may also dissuade many from considering the U.S. as a destination for study or exchange visits.

Piling on to Existing Measures

Jill Welch, the deputy executive director for public policy at NAFSA: Association of International Educators, said that it is “important to remember the extensive security measures already in place,” including “the thorough vetting and monitoring already in place for international students and scholars” and deemed export control measures designed to prevent the transfer of technologies to other countries.

A key measure that my clients in STEM fields have struggled with for years is the Visas Mantis security advisory opinion (SAO) procedures for vetting visa applicants. This interagency security check, which is meant to weed out visa applicants who may in the U.S. have access to sensitive technology with potential military applications and may seek to unlawfully export that technology. This is one type of check that the State Department refers to as “administrative processing.” At times, the wait for such checks has exceeded a year. I have one client who waited eight years to be cleared. Persons subject to such checks are issued visas with limited validity, meaning that if they want to make multiple trips to the U.S. they may be subject to this check multiple times.

(I’ve seen scientists with ties to the People’s Liberation Army caught during these checks after using covers to obscure those affiliations.)

Also, under current law, members of the Chinese Communist Party (CCP) are ineligible for green cards and naturalization with limited exceptions.

The Proclamation Is Vague and Overly Broad

The Fact Sheet issued by the administration about the proclamation claims:

Today’s actions will not affect students who come to the United States for legitimate reasons.

Similarly, the State Department says, in an Arms Control and International Security Paper, that the proclamation is “focused, moderate, and nuanced.” The paper calls the proclamation a “middle way” to protect the U.S. against “relatively few ‘bad apples’ who come to the United States under false pretenses”:

Even as we seek to preserve the integrity of an open and transparent
academic system that attracts the most qualified candidates from around the world, regardless of nationality, to our outstanding educational and research institutions, we must act to prevent this system from being
exploited for the benefit of our strategic competitors.

But the proclamation is actually vague and overly broad:

  • The Fact Sheet and State Department paper misrepresent the proclamation by claiming that it only bars persons coming to the U.S. under “false pretenses” and without “legitimate reasons.” Section 1 states that a person can be barred merely because they studied at an institution that supports MCF. The proclamation nowhere takes into account whether a student’s visa application is based on “false pretenses” or wether her “reasons” for coming to the U.S. are “legitimate.” There need be no evidence that she has done anything wrong. The proclamation should be narrowed to cover only persons whose purpose in coming to the U.S. is illicit. And the administration should not be given a free pass for misrepresenting its own rule.
  • It’s unclear what the scope of the exemption will be for persons whose study or research is “in a field involving information that would not contribute to the PRC’s military‑civil fusion strategy.” That will be determined by the Secretary of State and the Secretary of Homeland Security. It is heavy-handed for the administration to make the proclamation effective before this list of exempted fields is published.
  • Given the vagueness of the definition of the term “entity in the PRC that implements or supports, the PRC’s ‘military-civil fusion strategy,” the State Department should publish a list of “known” entities to give visa applicants some notice they may be barred.

Expect a Spike in Administrative Processing

According to one former State Department official:

The State Department has not issued guidance on how it will implement the new restrictions. It is likely consular officers will … put questionable but not clearly deniable case into “administrative processing” while the case is sent for interagency clearance.

This will likely result in … more processing delays as the additional cases sent in for clearance clog up the interagency clearance system. Given the strict time frames of academic semesters, even delays in processing could effectively preclude students from beginning (or continuing) an academic program.

Use More Targeted Measures to Better Counter Illicit Technology Transfer

Just as Trump’s implemented the Muslim ban while neglecting efforts to work with allies inside and outside the Muslim world to fight terrorism, so too this proclamation is no substitute for more targeted measure to better counter illicit technology transfer. A report by the Center for New American Security recommends:

  • Ensure sufficient resources for counterespionage investigations.
  • Develop better collaboration between U.S. law enforcement and universities.
  • Improve visa screening for espionage risks.
  • Expand sanctions authorities to cut off from the U.S. market and financial system Chinese firms that steal U.S. technology.
  • Include more People’s Liberation Army-linked companies on the export regime Entity List.

The Proclamation Ignores the Benefits to the U.S. of Chinese Students and Exchange Visitors

The head of the American Association for the Advancement of Science said that “Scientific progress depends on openness, transparency and the free flow of ideas.” This collaborative and open spirit, including collaboration with Chinese scientists, has led to some of the great scientific achievements of recent times.

“The vast majority of Chinese students are just here to learn and maybe do research, and they bring energy and intelligence and a fresh perspective to American higher education and they’re quite valuable,” says Daniel Golden, an investigative journalist. “It would be wrong and unfair to assume that some very large proportion of them are here for clandestine purposes.” Also, “we’re trying to recruit some of these Chinese students and professors and use them as spies ourselves.”

More concretely, while COVID-19 is making American universities’ economic status more precarious than ever, Chinese students often paying top dollar for their education. The Migration Policy Institute reports that Chinese students constitute one-third of foreign students in U.S. universities, and they presumably account for an equivalent proportion of the $37 billion that foreign students contribute to the American economy each year. The proclamation will imperil the future of many STEM departments.

Further, if the U.S. is in a battle for the hearts and minds of China’s next generations, Trump’s declaration is sure to do damage to America’s image in their eyes. They will resent the implication that all Chinese are a security threat to the U.S.

Such stereotyping could also fuel anti-Asian racism in the United States.

In the end, America’s own competitiveness will be the dominant determinant of the country’s place in the future world order. The administration should assess what Washington can do to make America run faster and jump higher. The countries greatest assets in rising to the China challenge are its “people [including its legacy as a nation of immigrants], demography geography, abundant energy resources, dynamic private sector, powerful alliances and partnerships, leading universities, robust democracy, and innovative spirit.” The country should be focused on “protecting the strength of the U.S. financial system, putting greater resources toward research and development, investing in education, developing human capital, leveraging high-skilled immigration, and defending America’s democratic way of life.”

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