Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On May 29, 2020, the White House issued a new proclamation on the admission of certain nonimmigrant students and researchers from the People’s Republic of China (PRC). The proclamation took effect on June 1, 2020, and will remain in effect until terminated. The restrictions suspend the entry into the United States of the following individuals:
- any national of the PRC seeking to enter the United States as a nonimmigrant pursuant to an F or J visa to study or conduct research in the United States, except for a student seeking to pursue undergraduate study,
- and who either receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or 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 the term “military-civil fusion strategy” to mean “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 proclamation targets the use of nonimmigrant visa programs to acquire access to sensitive technologies and intellectual property to bolster the Chinese military (People’s Liberation Army, or PLA) and to prevent authorities’ “use [of] some Chinese students, mostly post‑graduate students and post-doctorate researchers, to operate as non-traditional collectors of intellectual property.” The proclamation adds that “students or researchers from the PRC studying or researching beyond the undergraduate level who are or have been associated with the PLA are at high risk of being exploited or co-opted by the PRC authorities.”
On June 1, 2020, the Department of State issued a press release corroborating that post-graduate students or researchers who have worked or currently work for entities associated with the People’s Liberation Army are most at risk of visa denial and/or revocation. The press release explains that agencies will evaluate whether a postgraduate student or researcher’s academic or research activities are likely to support a PRC entity that implements and supports the Chinese Communist Party’s (CCP) military-civil fusion strategy.
The Department of State’s statement qualifies that “graduate students and researchers who are targeted, co-opted, and exploited by the PRC government for its military gain represent a small subset of Chinese student and researcher visa applicants coming to the United States.”
Origins of the Military-Civil Fusion Strategy
In its 2019 Report to Congress, the U.S.-China Economic and Security Review Commission (a congressional commission charged with monitoring and investigating national security and trade issues between the United States and the PRC) identified industrial areas considered particularly associated with the military-civil fusion strategy, including the following: artificial intelligence, commercial and technical leadership in new materials (building up basic research capabilities and manufacturing capacity in new and advanced materials, including acquisition of overseas firms, talent, and intellectual property), renewable energy and energy storage (promoting supply chain, critical materials, battery components, and batteries, expansion in lithium batteries) and nuclear power (cultivating future nuclear export markets and attracting advanced nuclear reactor designers).
While the determination that an individual is working to bolster the Chinese military complex is a highly fact-dependent and potentially subjective analysis, these highlighted areas of industry may provide some guidance to employers as to industries that are at a particularly greater risk.
Earlier this year, U.S. Department of State also highlighted a growing number of tools to evaluate whether entities are engaged in military research and development, giving the example of the Australian Strategic Policy Institute’s Defense Universities Tracker, which allows users to “explore the military and security links of China’s universities.”
How Does This Affect Individuals Already in the United States?
Individuals already in the United States who fall within the class of individuals whose entry is prohibited may risk having their existing visas revoked. The new proclamation notes that 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.” The proclamation seems to be retrospective in nature, evaluating whether postgraduate students and researchers have, in the past, conducted research for, been employed by, or received funding from PRC entities supporting the military-civil fusion strategy, which includes the People’s Liberation Army.
Which Exemptions Does the Proclamation Contain?
The proclamation contains several exemptions for individuals who would otherwise fall within the specified excluded class of students and researchers in F and J nonimmigrant status affiliated with China’s military-civil fusion strategy. Specifically, the suspension on entry does not apply to the following individuals:
- Any LPR (Legal Permanent Resident) of the United States;
- An individual who has a U.S. citizen or LPR spouse;
- An individual who is a member of the U.S. Armed Forces or who has a spouse or child who is a member of the U.S. armed forces;
- An individual 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 U.S. obligations under applicable international agreements;
- An individual who is 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;
- An individual whose entry would further important U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees;
- An individual whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or respective designees.
If an employee’s work, funding, or research history with an organization affiliated with China’s military comes to light, employers may want to consider additional screening regarding an individual’s employment background or organization. For individuals who have been (or are currently) engaged in research for, received funding from, or been employed by institutions affiliated with military research and development or the PLA in the PRC, the proclamation could compromise employees’ ability to obtain visas or to continue to work in the United States. It is important to remember that the individual need not actually be employed by a military-affiliated enterprise in order to fall within this prohibition.
Even students who are conducting research (or did so in the past) on behalf of an entity or organization (e.g., a university) may risk being labeled as falling within the prohibitions, if the entity is affiliated with the PRC’s military-civil fusion strategy, particularly if the area of research or work involves artificial intelligence, new materials, energy, or nuclear power or other military technology.
While maintaining awareness of the need for due diligence, employers should take caution when formulating recruitment questions to minimize effects of the policy, which expressly applies to nationals of the People’s Republic of China. First, pre-employment questions about proof of employment eligibility, even general in nature, may lead to perceptions that an employer is engaging in unlawful pre-screening. Employers must also exercise caution so as not to implicate citizenship discrimination or national origin discrimination claims (for example, use of an employment policy or practice that disproportionately impacts people on the basis of national origin).
Employers requiring more in-depth guidance on how this proclamation may impact current and prospective employees, or seeking additional guidance regarding appropriate measures to mitigate impact on current or prospective visa holders, should consult counsel.