On May 29, 2020, President Trump issued a proclamation pursuant to INA sections 212(f) and 215(a), as well as 3 U.S.C. 301, to block certain Chinese nationals associated with entities in China that implement or support China’s “military-civil fusion strategy” from using F or J visas to enter the United States. Below please find a summary of the President’s Proclamation. The Proclamation became effective on Monday, June 1, 2020 at 12:00 PM (ET), and will remain in effect until terminated by the President.
For the purposes of the Proclamation, the term "military-civil fusion strategy" means actions by or at the behest of the People’s Republic of China (PRC) to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC's military capabilities
The Proclamation applies to graduate level and higher students and researchers from the People’s Republic of China (“PRC”) applying for visas or seeking entry into the U.S. who:
- 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 the PRC that implements or supports the PRC's military-civil fusion strategy.
The following individuals from PRC are exempted from the Proclamation:
- Undergraduate students;
- Lawful permanent residents of the United States;
- The spouse of a United States citizen or lawful permanent resident;
- A foreign national who is a member of the United States Armed Forces and any foreign national who is a spouse or child of a member of the United States Armed Forces;
- A foreign national whose travel falls within the scope of section 11 of the United Nations Headquarters Agreement (such as a PRC U.N. representative or expert performing a U.N. mission) or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements;
- A foreign national 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;
- A foreign national whose entry would further 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
- A foreign national whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
Any foreign national who willfully misrepresents a material fact, seeks to circumvent the Proclamation through fraudulent means, or enters the United States illegally will be deemed a priority for removal by the Department of Homeland Security.
The Proclamation does not prevent a person from seeking asylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with U.S. law.
The Secretary of State or his designee has the sole discretion to determine whether a person is subject to or exempt from the Proclamation, pursuant to standards the Secretary establishes.
In addition to those seeking entry through F or J status, the Secretary of State will also consider whether the visas of PRC nationals currently in the United States in F or J status, to which the Proclamation would otherwise apply, should be revoked pursuant to INA section 221(i).
Within 60 days of the Proclamation taking effect, the Secretary of State and the Secretary of Homeland Security are required, in consultation with the heads of the appropriate agencies, to review nonimmigrant and immigrant programs and make recommendations of 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 Secretaries shall act within their authority to mitigate the risk posed by the PRC’s acquisition of sensitive US technologies and intellectual property.
The Proclamation also states that the Secretary of State and Secretary of Homeland Security may issue regulations implementing the inadmissibility provisions in section 212(a)(3)(D) of the INA, 8 U.S.C. 1182(a)(3)(D).
Companies and individuals with ongoing or prospective immigration processes and their employees, colleagues or family members who may be affected by the Proclamation should consult with counsel on individual situations.
If you have any questions, please contact Gunster attorneys Sarah Tobocman, Mariana Ribeiro, Beatriz Osorio, and Maria Romero.
The summary provided is based upon information published by the American Immigration Lawyers Association (“AILA”) on May 29, 2020 on its website, (www.aila.org).
