President Donald Trump signed a proclamation on May 29, 2020, temporarily suspending entry into the United States of certain Chinese nationals holding F-1 or J-1 status. The proclamation also prohibits the issuance of F-1 or J-1 visas to such persons. Chinese nationals who are associated with the “military-civil fusion strategy” of the People’s Republic of China and are seeking entry to study or conduct research at the graduate level will be denied entry or a visa when the proclamation takes effect at noon ET time on June 1, 2020.
For the purposes of this proclamation, the term “military-civil fusion strategy” is defined as comprising “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.”
The military-civil fusion strategy, which has existed for some time, is a directive by the PRC that new technologies produced by the private sector must be shared with the Chinese military and was written into the Chinese constitution last year. The military-civil fusion strategy has been described by the US State Department as a global security concern and the basis of the May 29 proclamation is a desire to prevent individuals with ties to this strategy who are studying or researching in the United States from disclosing sensitive information acquired while in the US to the Chinese military.
The affected group of Chinese nationals is defined as F-1 or J-1 holders who either receive funding from or who are currently employed by, study at, or conduct research at or on behalf of, or have been employed by, studied at, or conducted research at or on behalf of, an entity in China that implements or supports China’s military-civil fusion strategy. The proclamation also requires the State Department to consider whether Chinese nationals currently in the United States in F-1 or J-1 status and who meet the criteria for suspension of entry should have their existing visas revoked.
The proclamation does not affect all Chinese nationals seeking entry in F-1 or J-1 status. The following individuals are exempted from the suspension on entry and possible visa revocation:
Unlike the April 22, 2020, presidential proclamation that imposed a temporary ban on the issuance of green cards overseas, the May 29 proclamation appears to be unrelated to the COVID-19 pandemic and the effect it is having on job opportunities for American workers. Rather, the latest proclamation reflects security and intellectual property concerns that predate the pandemic. The proclamation also appears to be unrelated to the mandate of the April 22 proclamation to certain federal departments to “review nonimmigrant programs” and recommend to the president “other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
Again, the new restrictions apply to Chinese nationals associated with the military-civil fusion strategy and are applying for F-1 or J-1 nonimmigrant visas at US consulates outside the United States or are seeking entry into the United States in F-1 or J-1 status. Such persons will either be denied F-1 or J-1 visas or will be denied entry in either of these statuses. Since persons who have been physically present in China in the last 14 days are already prohibited from entering the United States because of COVID-19 concerns, the bar on entry will not have an immediate impact. As noted earlier, Chinese nationals already in the United States in F-1 or J-1 status are subject to visa revocation. Such revocation does not mean the visa holders must leave the country, but they must apply for new visas if they wish to reenter the United States after travel overseas.
The restrictions will be in place for an indefinite period, although the State Department, in consultation with the Department of Homeland Security, may recommend the termination, modification, or extension of these restrictions.
Legal challenges to the executive order are expected; however, the president’s authority to issue an order along these lines may find support in 42 U.S.C. §265 and the recent US Supreme Court decision in Trump v. Hawaii, No. 17-965, 585 U.S. (2018); 138 S. Ct. 2392; 201 L. Ed. 2d 775, which upheld Executive Order 13,780 banning entry of nationals from several predominantly Muslim countries.
An additional element of the proclamation is that, within 60 days the secretaries of State and Homeland Security “take action to further mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.”
The practical impact of the executive order on US employers of Chinese nationals is likely to be limited, since only persons who have the necessary association with the PRC’s military-civil fusion strategy are affected, and the number of such persons within the F-1 and J-1 community of nonimmigrants is probably not high. It is not clear, however, how aggressively the immigration authorities will seek to enforce the proclamation, particularly with respect to the identification of persons who have the prohibited association, in terms of receiving funding from an entity in China that implements or supports China’s military-civil fusion strategy or have been employed by, studied at, or conduct research at or on behalf of such an entity.
Although the US Department of Commerce maintains a list of entities that participate in the military-civil fusion strategy, an association of this type will typically not be readily evident and will require considerable investigation to be revealed. It is possible, given the current environment, that all Chinese F-1 and J-1 nonimmigrants studying or conducting research in technological fields could be presumed to have such an association unless they can prove otherwise. In all likelihood, questions probing into such an association will be asked by consular officers at the time of a visa interview or by US Customs and Border Protection officers at the time of an application for admission. It is also not clear what action will be taken to determine if F-1 and J-1 nonimmigrants already in the country have such an association. Since the proclamation refers to such persons, it is possible that one or more of the immigration authorities may take steps to identify them. Such steps could include having the F-1 and J-1 holders appear for interviews and conducting site visits at the educational institutions attended by these persons or at the employers for which they work.
The requirement in the proclamation that the two cabinet secretaries take further action within 60 days may foreshadow future restrictions on Chinese F-1 and J-1 nonimmigrants who are deemed to be associated with the military-civil fusion strategy. Such action include the removal of such persons from the United States.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Washington, DC
Eric S. Bord
Shannon A. Donnelly
Eleanor Pelta
Miami
Laura C. Garvin