The State Department has announced that on June 11 it will begin to limit visa validity for Chinese (PRC) national students and others involved in certain high-technology fields (robotics, aviation and others), and increase the number of cases subject to interagency clearances. The State Department gave no specific information on how this policy will be implemented.

Key points:

  • Because consular officers have the legal discretion both to impose limits on visas shorter than the standard validity based on “reciprocity” and to refer cases for clearances, these changes can be imposed without the need to promulgate regulations through formal rulemaking procedures.
  • The new clearance requirements could result in increases in “administrative processing” denials pending interagency clearances of visa applicants and could result in lengthy processing delays for some applicants.

Background:  This new announcement may be implementing President Trump’s national security strategy issued in December, which stated that the U.S. would tighten visa procedures “to reduce economic theft by non-traditional intelligence collectors,” and which mentioned possible visa restrictions on Chinese students involved in STEM fields.

BAL Analysis: In the past, some Chinese nationals in the STEM fields have been subject to clearances based on potential violations of export control laws related to goods, technology or sensitive information. However, screening visa applicants for concerns over U.S. intellectual property theft would be unprecedented. While violation of export control laws is grounds for the U.S. to deny a visa, there is no express authority in the Immigration and Nationality Act for denying a visa based on protecting intellectual property. The newly announced initiative focuses instead on limiting visa validity and increased screening, which are within the discretion of consular officers.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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