The White House has issued a new travel ban blocking Chinese nationals associated with entities that are part of China’s “military-civil fusion” strategy from obtaining graduate level Student (F) or Exchange Visitor (J) visas. The ban went into effect on June 1 and has no end date. The ban specifically references those visa applicants who are currently outside the United States, but does not exclude the possibility that the estimated 3000 Chinese nationals, already studying in the U.S. who meet the criteria of the executive order, could have their existing visas revoked.
The language of the executive order is broad and includes anyone who is currently or has ever been employed by, studied at, conducted research for, or been funded by an entity in the People’s Republic of China (PRC) that supports the country’s military-civil fusion strategy. China experts indicate that many universities in China have links to the military, especially those that have programs in cybertechnology and communications. Determining which visa applicants associated with which programs should be barred under the executive order will be difficult, especially in light of China’s military-civil fusion strategy, which ostensibly aims to encourage research that benefits both military and civil applications.
The travel ban does not apply to undergraduates, only to graduate students and post docs. Also exempted are lawful permanent residents, spouses of lawful permanent residents, foreign nationals who are members of the U.S. military, and foreign nationals whose entry would further U.S. law enforcement objectives or the national interest. These last two categories would require a special waiver from the State Department in order to have a F or J visa approved.
The most troublesome part of the travel ban is that decisions as to whether visas will be issued to particular Chinese nationals will be at the hands of U.S. consular officers, who have unfettered discretion to grant, delay, or deny individual visa applications. To date, no guidance has been issued by the State Department to Consular officers, but to be fair, consulates are just now starting to reopen for visa appointments as the impact of the Coronavirus Pandemic subsides.
However, even with any potential guidance, the wide discretion available to visa officers will cause havoc for Chinese Students and Exchange Visitors, as well as for university administrators. Without more guidance, or even with guidance from the State Department, visa officers will be loathe to approve questionable applicants for student or exchange visitor visas. This will certainly cause delays in visa issuance, unfair denials and could have a chilling effect on the admissions applications of Chinese graduate students to U.S. universities overall.
Chinese nationals constitute the vast majority of foreign students in the United States. During the last academic year, they counted 360,000, compared to 150,000 from India, the next closest nationality. These new restrictions come in the midst of a five-year downward trend for foreign student admissions overall and the acceleration of that trend in 2020 due to the pandemic. Stay tuned for more developments as visa appointments resume and the State Department’s guidance to visa officers is issued.
For questions on immigration issues in general or specific to visa issuance and waivers available under the myriad of travel bans currently in effect, contact Valentine Brown. (215) 979-1840 or vbrown@duanemorris.com