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. Effective at 12:00 p.m. eastern daylight time on June 1, 2020, and will remain in effect until terminated by the President.
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. Also 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)
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).
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"
- 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
- "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.
- "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."
- "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