MISSION CREEP – Chinese Trade Skirmishes Lead to Visa Retaliation on June 11

The U.S. Trade Representative (USTR) issued its 2018 Special 301 Report in April, which identifies U.S. trading partners that do not sufficiently protect and enforce intellectual property (IP)  rights or otherwise deny market access.  The USTR Special Report lists the following 12 countries on the Priority Watch List: Algeria, Argentina, Canada, Chile, China, Colombia, India, Indonesia, Kuwait, Russia, Ukraine, and Venezuela.  China has been on the Priority Watch List for 14 consecutive years.  China’s coercive technology transfer practices, barriers to effective IP enforcement, and infringing activity—including trade secret theft, rampant online piracy, and counterfeit manufacturing—are referenced as reasons for inclusion.  While the ongoing threats of trade tariffs continues to cause major chaos as to the U.S./China yin and yang, U.S. visa policy for China now appears to be targeted.

Various media and association outlets have reported that as of June 11, U.S. consulates will begin to limit student (F-1) and exchange visitor (J-1) visa validity to one year for graduate students in certain fields of study (e.g. aviation, robotics and high tech manufacturing) in response to concerns regarding intellectual property theft by China.   Currently, under the U.S. reciprocity schedule, which addresses maximum validity periods, a Chinese national may be issued an F-1 or  J-1 visa for up to 5 years. H-1B visas, however, are currently limited to a one year period of validity.  In addition, it appears that special clearance processes will also be imposed by the U.S. Department of State (DOS) to Chinese citizens applying for visas to work as managers or researchers for companies on a U.S. Department of Commerce list of entities requiring higher scrutiny.

On June 6, the Senate Committee on the Judiciary, Subcommittee on Border Security, held a hearing titled, “Student Visa Integrity: Protecting Educational Opportunity and National Security.” During the hearing, Deputy Assistant Secretary for Visa Services of the Bureau of Consular Affairs for DOS, Mr. Edward J. Ramotowski, confirmed that detailed instructions were sent to consular posts to implement the new restrictions on Chinese nationals as of June 11.  Senator Hirono of Hawaii asked if further legislation is necessary to protect U.S. universities from Chinese espionage.   She mentioned Senator Cruz’s bill (S.2903) entitled, “The Stop Higher Education Espionage and Theft Act of 2018.”  The bill creates a way for the Federal Bureau of Investigation (FBI) to designate entities as a foreign intelligence threat to higher education and require academic institutions to comply with strict reporting requirements for interactions with such entities.  Those on the panel of witnesses did not reply to her query with any endorsement one way of the other.

What to anticipate as the impact on June 11?

  1. The visa validity restriction will reduce travel flexibility, but it does not prohibit visa issuance.  Students and Exchange Visitors from China who will be working in aviation, robotics, and high tech manufacturing industries should be prepared for reduced travel to their home country.  It appears that these restrictions do not apply as to seeking extensions and changes of status in the U.S. from U.S. Citizenship and Immigration Services (USCIS).
  2. Potential visa processing delays and visa denials may be anticipated due to the “special clearance processes” regarding Chinese citizens applying for L-1 intracompany, H-1B specialty occupation, and O-1 extraordinary ability visas to work as managers or researchers for certain companies and business entities should be expected.  Congressional inquiries may be increased due to these checks as well as placement of personnel in other countries in some cases, if necessary.
  3. This process may also result in increased Technology Alert List (TAL) Mantis checks, which are typically reviewed by the FBI among other interested agencies. In the past, these checks have easily taken over sixty days. In addition, the validity of security clearances are limited, once issued, so again further international travel challenges must be anticipated.
  4. In addition, it is possible that we may see these sorts of restrictions applied in the future with more frequency to nationals of other countries on the IP Priority Watch List mentioned above in this article.
  5. It is important to remember that §212(a)(3)(A)(ii) of the Immigration and Nationality Act, as amended (INA), makes a visa applicant ineligible for admission, if there is a “reason to believe” that the applicant is coming to the U.S. solely, principally, or incidentally to engage in “any other unlawful activity.”  (9 FAM 302.5-4)  In addition, INA §212(a)(3)(A)(i)(II) renders inadmissible any foreign national, who a consular or immigration officer “knows or has reason to believe” seeks to enter the U.S. to engage solely, principally, or incidentally in any activity, which violates or evades any law prohibiting the export from the United States of goods, technology, or sensitive information.  (9 FAM 302.5-3)

About the Author: 

Kathleen Campbell Walker is a member of Dickinson Wright PLLC. She was national president of the American Immigration Lawyers Association (AILA) from 2007 to 2008.  She is board certified in Immigration and Nationality law by Texas Board of Legal Specialization.  In 2014, she was the recipient of the AILA Founder’s Award in 2014, which is awarded from time to time to the person or entity who has had the most substantial impact on the field of immigration law or policy in the preceding period (established 1950).  She has testified before Congress on matters of immigration policy and border security.  She served on the 2009 Independent Task Force on U.S. Immigration Policy of the Council on Foreign Relations chaired by Thomas F. McLarty III and Jeb Bush.