Proclamation 10043 of May 29, 2020, titled Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China (PRC). Effective at 12:00 p.m. eastern daylight time on June 1, 2020, and will remain in effect until terminated by the President. The proclamation suspends entry of certain Chinese students and researchers connected to the PRC "Military-Civil Fusion Strategy."
A September 15, 2021 DOS Federal Register notice announced the Secretary of State's delegation of authority to the Assistant Secretary for Consular Affairs to make national interest determinations under the PRC "Military-Civil Fusion Strategy proclamation to exempt students and researchers who would be otherwise covered by the entry bar under that proclamation, but "whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees." See 86 FR 51435 (September 15, 2021).
On June 10, 2021, NAFSA joined with the American Council on Education (ACE) and other U.S higher ed organizations to request a briefing from the State Department, specifically from representatives of the Bureau of East Asian and Pacific Affairs, the Office of Consular Affairs, and the Bureau of International Security and Nonproliferation, for higher education associations on the implications of Proclamation 10043 on international students and scholars.
- Proclamation 10043 of May 29, 2020, Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China, published in the Federal Register at 85 FR 34353 (June 4, 2020)
- June 1, 2020 Department of State press release describing the proclamation: U.S. Limits the People’s Liberation Army’s Ability to Use Nonimmigrant Visa Programs to Illicitly Acquire U.S. Technologies and Intellectual Property
- NAFSA Statement: International Education Grows Concerned about Latest Executive Action to Restrict Chinese Students & Scholars (May 29, 2020)
- 9 FAM 302.14-12, Foreign Affairs Manual section on Proclamation 10043
- CSET Issue Brief. Remco Zwetsloot, Emily Weinstein, Ryan Fedasiuk, "Assessing the Scope of U.S. Visa Restrictions on Chinese Students" (Center for Security and Emerging Technology, February 2021). https://doi.org/10.51593/20200076.
- 86 FR 51435 (September 15, 2021), DOS Federal Register notice delegating authority to make national interest determinations under Proclamation 10043 to the Assistant Secretary for Consular Affairs.
Section 1 of the proclamation suspends "entry into the United States as a nonimmigrant of any national of the PRC seeking to enter the United States 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:
- Currently "receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of... an entity in the PRC that implements or supports the PRC’s 'military-civil fusion strategy'," or
- In the past "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'"
Under the proclamation, "the term “military-civil fusion strategy” means 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."
Section 1 wholly exempts F and J undergraduate students from the proclamation. Likewise, graduate students and researchers are also exempt from the proclamation if they do not have any of the specific current or past funding, employment, study, or research nexuses with "an entity in the PRC that implements or supports the PRC’s 'military-civil fusion strategy'."
The proclamation focuses on the specified connections with PRC entities that implement or support the PRC’s effort “to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities.” What are those entities? The preface to the Executive Order as well as the June 1, 2020 DOS press release call out the People’s Liberation Army (PLA), so that and entities clearly connected or tied to it are likely candidates. It is the role of agencies, rather than of schools, to identify the entities and determine the connections to those entities: DOS, in determining visa eligibility, and DHS, to determine admissibility at a port of entry.
In a June 16, 2020 teleconference, the Department of State indicated that the list of entities will not be made public. However, DOS did mention the following resources that could give individuals a better background understanding:
- Military-Civil Fusion and the People's Republic of China, U.S. Department of State Fact Sheet.
- Technology Transfers to the PRC Military and U.S. Countermeasures: Responding to Security Threats with New Presidential Proclamation. Arms Control and International Security Papers, Volume I, Number 9, June 5, 2020. Christopher A. Ford, Office of the Under Secretary of State for Arms Control and International Security.
- China Defence Universities Tracker, by the Australian Strategic Policy Institute (note: DOS offered this only as an example of how one country, Australia, flagged entities on a risk scale; DOS was clear that individuals should not assume that the U.S. list of entities will mirror or be based on the Australian tracker).
In addition to PLA universities like the National Defense University of Technology, which are known to be directly affiliated with the military, a February, 2021 CSET Issue Brief lists 11 non-PLA Chinese universities that the authors of that Issue Brief consider most likely to be covered by the Proclamation.
As mentioned above, Section 1 wholly exempts students pursuing undergraduate study. Section 2 then provides the following additional exceptions to the suspension order. That is to say, Section 1 of the executive order also does not apply to individuals who might otherwise be subject to it if they are:
- Individuals "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 (agencies)"
- U.S. lawful permanent residents
- Spouses of United States citizens or lawful permanent residents
- Members of the United States Armed Forces and their spouse and children
- Individuals "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 United States obligations under applicable international agreements"
- Individuals "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" [NAFSA note: A DOS Federal Register notice (September 15, 2021) delegates to the Assistant Secretary for Consular Affairs the Secretary of State's authority to make these national interest determinations]
- Individuals "whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees."
The Secretary of State will implement the proclamation as it applies to visas "pursuant to such procedures as the Secretary of State, in consultation with the Secretary of Homeland Security, may establish in the Secretary of State’s discretion." The Secretary of Homeland Security will implement the proclamation "as it applies to the entry of aliens pursuant to such procedures as the Secretary of Homeland Security, in consultation with the Secretary of State, may establish in the Secretary of Homeland Security’s discretion."
Additional measures under Section 6 of the proclamation
- Section 6(a) provides: "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 pursuant to section 221(i) of the INA, 8 U.S.C. 1201(i)."
- NAFSA note: See NAFSA's Visa Revocations Basics page for background on INA 221(i) and associated regulations and policy.
- Read a Forbes article: China Reacts As U.S. Revokes Visas Of More Than 1,000 ‘High-Risk’ Chinese Students (September 10, 2020)
- Section 6(b) provides: "Within 60 days of the effective date of this proclamation, the Secretary of State and the Secretary of Homeland Security, in consultation with the heads of appropriate agencies, shall review nonimmigrant and immigrant programs and shall recommend to the President, through the Assistant to the President for National Security Affairs, 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."
- Section 6(d) provides: "The Secretary of State and the Secretary of Homeland Security shall consider issuing updated regulations and guidance, as appropriate, implementing the inadmissibility provisions in section 212(a)(3)(D) of the INA, 8 U.S.C. 1182(a)(3)(D)." [NAFSA note: this provision is the "Immigrant membership in totalitarian party" ground of inadmissibility that applies to immigrant visa applicants, but not to nonimmigrant visa applicants.]
Authorities cited in the proclamation
The following statutory provisions are cited as authority for the proclamation:
- INA 212(f) / 8 USC 1182(f) - This is the same authority cited in Travel Bans 1.0 - 4.0, which provides: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."
- INA 215(a) / 8 USC 1185(a) - A very general provision titled "Travel control of citizens and aliens - Restrictions and prohibitions"
- 3 USC 301 - A very general provision that allows the President to delegate authorities to agencies
Impact on Chinese students
One source for assessing the impact of the proclamation on Chinese graduate students is:
February, 2021 CSET Issue Brief. Remco Zwetsloot, Emily Weinstein, Ryan Fedasiuk, "Assessing the Scope of U.S. Visa Restrictions on Chinese Students" (Center for Security and Emerging Technology, February 2021). https://doi.org/10.51593/20200076.
Executive Summary from the Issue Brief:
"In May 2020, the White House issued a Proclamation barring Chinese graduate students and researchers from studying or working at U.S. universities if they previously had been affiliated with Chinese institutions that “implement or support” China’s military-civil fusion (MCF) strategy. This Brief summarizes what we know—and do not know—about the policy, and uses two new datasets to estimate how the policy’s impact would differ depending on how federal agencies define and operationalize "military-civil fusion." It also compares the number of students who could be blocked by the Proclamation to the overall number of Chinese student enrollments at U.S. universities."
The Issue Brief authors state that:
"We think it is likely that the annual number of affected [graduate] students falls somewhere between 3,000 and 5,000. This estimate is consistent with anonymous official sources quoted by The New York Times and Reuters, who said 3,000 to 5,000 individuals would be affected by the Proclamation. Given the many sources of uncertainty, however, this is not a high-confidence estimate. When putting this estimate in context below, we provide background data that is sufficiently detailed for others who disagree with our analysis to re-do our calculations using different numbers."