Update: Entry Suspended for Chinese Students and Researchers with Military-Civil Fusion Links

President Trump issued Proclamation 10043 on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China on May 29, 2020. The Biden administration has continued to enforce the Proclamation.

As of fall 2020, the State Department had revoked about 1,000 previously issued visas under the Proclamation. During fiscal year 2021, a total of 1,964 visas were denied pursuant to the Proclamation, according to State Department statistics. Fiscal year 2022 statistics obscure the number of denials.

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 links to an entity that “implements or supports” China’s “military-civil fusion strategy.” Those links 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.”

Which Fields of Study or Research Are Covered by the Proclamation?

As mentioned above, the proclamation covers all fields that would contribute to the PRC’s military‑civil fusion strategy.

The State Department Fact Sheet states that covered fields include, but are not limited to, quantum computing, big data, semiconductors, 5G, advanced nuclear technology, aerospace technology, and AI.

The Secretary of State and the Secretary of Homeland Security have determined that certain fields are not covered, but they have not publicly announced their determination. See 9 FAM 302.14-12.

All STEM fields may be covered, according to the Center for Security and Emerging Technology.

What Entities “Implement or Support” MCF Strategy?

Former FBI Director Christopher Wray testified before the Senate Intelligence Committee 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 State Department has not publicly announced what entities are covered. See 9 FAM 302.14-12.

Likely candidates for covered entities include the “seven sons of national defense,” leading universities with deep roots in the military industry:

Beijing Institute of Technology
Armaments and aeronautics
Beihang University
Aeronautics and astronautics
Harbin Engineering University
Maritime technology, nuclear, aeronautics, astronautics, and armaments
Harbin Institute of Technology
Aeronautics and astronautics
Nanjing University of Aeronautics and Astronautics
Aeronautics and astronautics
Nanjing University of Science and Technology
Northwestern Polytechnical University
Aeronautics, astronautics, maritime technology and armaments

Additional covered entities may include universities on the U.S. Department of Commerce’s Bureau of Industry and Security “Entity List,” which identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States. Universities on that list include:

Beijing University of Posts and Telecommunications
University of Electronic Science & Technology of China
Sichuan University
Tianjin University
National University of Defense Technology
Sun Yat-Sen University
Huazhoung University of Science and Technology
Xinjiang University
Xinjiang Police College

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.

The Australian Strategic Policy Institute has created The China Defence Universities Tracker, which ranks institutions on a continuum from “High Risk” to “Low Risk.” A higher risk rating may reflect a greater chance that the university will be considered a covereed entity.

The China Scholarship Council (CSC or 国家留学基金管理委员会) may also count as an entity that “implements or supports” China’s “military-civil fusion strategy.” CSC provides scholarships to 26,000 or more Chinese students studying in the U.S. each year, mostly PhD students and postdocs. Some of those scholarships are for researching cutting-edge technologies designated by national strategies. Upon completion of the study program, scholarship recipients may be required to return to live and work in China for at least two years. See Center for Security and Emerging Technology (CSET), The China Scholarship Council: An Overview (July 2020). Some CSC scholarship recipients report visa denials.

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 Center for Security and Emerging Technology estimates that the Proclamation could block 9 to 15 percent of Chinese graduate students seeking visas. 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.

Section 212(a)(3)(A)(i)(II) of the Immigration and Nationality Act renders ineligible any visa applicant the consular officer knows or has reason to believe seeks to enter the United States to engage solely, principally, or incidentally in any activity which violates or evades any law prohibiting the export from the United States of goods, technology, or sensitive information.

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 whether 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.
  • As discussed above, it is unclear what is the scope of the exemption for persons whose study or research is “in a field involving information that would not contribute to the PRC’s military‑civil fusion strategy.”
  • 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.

Spike in Administrative Processing

Screening of Chinese visa applicants potentially covered by Proclamation 10043 is performed by the U.S. Customs and Border Protection’s National Targeting Center and the State Department’s Bureau of Consular Affairs. See DHS Strategic Action Plan to Counter the Threat Posed by the PRC (2020).

According to one former State Department official:

[C]onsular 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

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.”

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, the Proclamation 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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