July 11, 2020

Volume X, Number 193

July 10, 2020

Subscribe to Latest Legal News and Analysis

July 09, 2020

Subscribe to Latest Legal News and Analysis

July 08, 2020

Subscribe to Latest Legal News and Analysis

Starting June 1, Some Nonimmigrants From People’s Republic Of China Barred From Entering U.S.

Highlights

A recent presidential proclamation, effective June 1, suspends the entry of certain nonimmigrants from the People’s Republic of China into the U.S. 

Graduate students and researchers seeking to enter the U.S. on J or F visa status who have an association to the People’s Liberation Army are prohibited

The proclamation will not affect undergraduate students, or other lawful residents or foreign nationals

Late last week, President Trump issued an official proclamation in response to ongoing concerns that Chinese students in the U.S. are spying for the People’s Republic of China (PRC). 

This proclamation took effect on June 1, 2020 and will remain in effect until terminated by the president. It restricts certain categories of nonimmigrants from the PRC, from entering or remaining in the United States. 

This is the second proclamation that the president has issued since April to curtail lawful immigration into the U.S., which impacts highly skilled foreign nationals. 

The use of the term “nonimmigrant” in this recent proclamation is highly significant. “Green card” holders and other temporary visa categories are not included. Under U.S. immigration law, this term refers to individuals entering the United States on a “temporary basis.” Examples of nonimmigrant classes of admission include temporary visitors for business and pleasure, academic and vocational students, exchange students, temporary workers, victims of crime, athletes and entertainers, treaty traders and investors, foreign government officials, aliens in transit, and certain family members of U.S. citizens and lawful permanent residents (LPRs). 

Unlike people granted LPR, or "green card" status, who may live in the United States essentially without restrictions, nonimmigrants are authorized to enter the country for specific purposes. Nonimmigrants’ duration of stay and lawful activities, such as study, research, employment, travel, and accompaniment by dependents, are prescribed by conditions on their visa type for entry and admission.

Nonimmigrants Affected and Not Affected

Only graduate level and higher students and researchers from the PRC who are applying for J or F visas or seeking entry into the U.S. in J or F status are blocked from entering the country if they receive or have received funding from or are currently employed by, study at, or conduct research at or on behalf of an entity in the PRC that implements or supports the People’s Liberation Army.

The suspension and limitation on entry to the United States will not apply to individuals from the PRC who are:

  • Undergraduate students

  • Lawful permanent resident of the United States (a green card holder)

  • 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.S. mission) or who would otherwise be allowed entry into the United States pursuant to United States obligations under applicable international agreements

  • An alien 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 alien 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

  • 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

Review of Current J and F Visa Holders in the U.S. from the PRC

This proclamation also directs the Secretary of State to determine the eligibility of PRC nationals currently in the United States. This direction is to determine whether their J or F visas should be revoked pursuant to the Immigration and Nationality Act, INA Section 221(i), which permits revocation for any reason deemed as noncompliance with U.S. law. 

This will likely require a complete examination of these PRC foreign nationals’ records from universities and colleges, and possibly their current employers. 

Asylum and Refugee Status

The proclamation does not prevent a person from the PRC 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.

Additional Measures to Consider

By July 31, 2020, 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 U.S. technologies and intellectual property. Additionally, the secretaries shall act within their authority to mitigate this same risk.  

The proclamation also states that the Secretary of State and Secretary of Homeland Security may issue regulations implementing the inadmissibility provisions in INA 212(a)(3)(D), 8 U.S.C. 1182(a)(3)(D), which are the security grounds of inadmissibility addressing aliens who are ineligible to receive visas and admission to the U.S.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume X, Number 155

TRENDING LEGAL ANALYSIS


About this Author

Mercedes Badia-Tavas Immigration Attorney
Partner

Mercedes Badia-Tavas provides legal and business guidance to clients on a broad range of immigration law cases, with focus on Fortune 500 and small companies alike. Mercedes supports her firm’s offices and clients across various states on immigration employment transfers and up-to-date compliance.

As an immigrant herself, Mercedes finds particular fulfillment in helping companies and individuals immigrate to the United States and participate in the American dream through startups and business transactions that also can benefit the U.S. economy.

Mercedes attributes much of her...

312-214-8313
Tejas Shah Immigration Lawyer Barnes & Thornburg Chicago
Partner

Tejas Shah has the ability to take the complex and confusing nature of immigration law and simplify it for his clients. His goal is to not only help them comply with the multifaceted requirements of U.S. immigration law, but also to ensure that as clients source global talent, they thrive in environments that can be hostile to migration.

As employers increasingly seek to hire and retain talented foreign national employees to maximize competitiveness, Tejas is empathetic to their needs and offers practical immigration law advice. He is committed to guiding employers of all sizes – across a diverse cross-section of industries, including finance, banking, education, transportation, and healthcare – in efficiently and economically sponsoring workers for permanent residency in the United States through Program Electronic Record Management (PERM) labor certifications and in multiple temporary visa categories, such as H-1B, O-1, E-2, R-1, E-3, and L-1.

He also counsels employers who seek assistance and counsel on self-audits and responding to I-9 audits by the U.S. Department of Homeland Security, Social Security Administration (SSA) no-match letters, and Department of Labor wage and hour audits of H-1B workers.

Tejas represents and assists higher education institutions with a wide range of immigration issues in and outside of litigation, including advising student and faculty issues involving immigration statuses, sponsoring faculty and other professional staff for visas and permanent residency, and advising institutions on legally compliant immigration sponsorship programs. Tejas is often a resource for international student services offices as he provides guidance and counsel on complying with SEVP program regulations. Further, he has frequently presented on changes to immigration policy and litigation that could impact DACA recipients, international students from countries subject to certain Presidential Proclamations, and applicants for asylum.

In addition, Tejas maintains a healthy individual immigration practice. He works with investors, scientists, researchers, and artists on immigration strategies and represents individuals in family-based immigration and naturalization matters, including clients in deportation proceedings, in the U visa application process, and litigation in the federal courts.

Tejas also maintains a pro bono practice assisting individuals and families through the National Immigrant Justice Center and Chicago Volunteer Legal Services.

Before joining Barnes & Thornburg, Tejas practiced at two immigration-focused law firms and a labor, employment and education firm, all in Chicago. During law school, he was a law clerk in the Office of the General Counsel for the U.S. Department of Health and Human Services in Washington, D.C.

312-214-5619
Michael Durham Immigration Attorney Barnes & Thornburg
Partner

Michael Durham has been practicing immigration law exclusively for the past 17 years. Michael’s focused experience allows him to guide his clients through the complex and constantly changing labyrinth of immigration laws and regulations.

Michael’s knowledge and understanding of immigration laws and critical insight into the immigration process qualifies him to represent businesses, employers and individuals alike with a wide range of immigration-related needs and services.

He assists employers, including hospitals, colleges and universities, technology companies, religious...

574-237-1145
Partner

Sarah Hawk’s strategic mind and extensive understanding of current and emerging immigration legislation and trends have earned her national and international recognition. Sarah provides crucial immigration counsel to domestic and multinational companies in various industries such as healthcare, financial services, hospitality, higher education, and technology, among others.

Sarah brings nearly 20 years of experience helping companies develop and implement immigration policies to secure visas and permanent residence status for executives, managers and critical employees. She also...

404-264-4030
Terra Martin Labor & Employment Attorney Barnes and Thornburg Atlanta, GA
Of Counsel

Terra represents software development companies, educational institutions, life sciences, medical centers, hospitals, physicians and research organizations in immigration and global mobility matters. She helps companies develop and implement immigration policies to secure visas and permanent residence status for executives, managers and critical employees, such as professors and scientists at universities and research institutions, and artists, athletes, entrepreneurs, and investors.

With experience in private practice and time in-house with a university, Terra has a unique...

404-264-4023