Cyrus Mehta

The Real Threat to the US Economy is Trump’s Proclamation, Not the Nonimmigrant Workers it Bans

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By Cyrus D. Mehta and Kaitlyn Box*

President Trump has mastered the Dark Arts of immigration bans. On June 22, 2020, Trump signed yet another Presidential Proclamation further restricting immigration into the United States. The new proclamation is an extension of the previous proclamation issued on April 22, 2020 that suspends certain green card applications and limits highly skilled workers and several nonimmigrant visa categories. The proclamation is effective as of June 24, 2020 and expires on December 31, 2020. The proclamation may be modified during this period as deemed necessary.

The Proclamation supposedly cites a desire to preserve jobs for American workers and high unemployment rates in the face of the COVID-19 pandemic as a rationale for suspending the entry of certain green card applicants and highly skilled workers. It states without any foundation “American workers compete against foreign nationals for jobs in every sector of our economy, including against millions of aliens who enter the United States to perform temporary work.  Temporary workers are often accompanied by their spouses and children, many of whom also compete against American workers.  Under ordinary circumstances, properly administered temporary worker programs can provide benefits to the economy.  But under the extraordinary circumstances of the economic contraction resulting from the COVID-19 outbreak, certain nonimmigrant visa programs authorizing such employment pose an unusual threat to the employment of American workers”. In reality, however, both this Proclamation and the April Proclamation that it expands upon are part of a broader strategy by the Trump administration aimed at curtailing all immigration.

Foreign nationals who were outside the United States on the effective date of the proclamation (June 24, 2020), do not have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on that date, and are seeking to obtain an H-1B visa, H-2B visa, L visa or certain categories of the J visa are barred. Additionally, accompanying or following to join dependents seeking to obtain H-4, L-2, or J-2 visas who were outside the U.S. on the effective date are also barred. However, if the principal H-1B, H-2B, J-1, or L-1 beneficiary is already in the United States, or otherwise exempt (see below), it is unclear at this time whether this bar will apply to dependents who will subsequently apply for H-4, L-2, or J-2 visas at the U.S. Consulate.

The Proclamation does not apply to: anyone who was inside the United States on June 24, 2020, individuals who are outside the United States and have a nonimmigrant visa or other official immigration document (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on June 24, 2020, Lawful permanent residents of the United States (green card holders), spouses and children of U.S. citizens, individuals seeking to enter the United States to provide temporary labor or essential to the United States food supply chain; and anyone whose entry would be in the national interest as determined by the Departments of Homeland Security and State. CBP headquarters has confirmed that Canadians entering as H, L or J nonimmigrants are exempt from the proclamation.

The Proclamation also seems to leave open the door for other measures aimed at restricting the entry of certain categories of immigrants, or even taking action against individuals who have already been admitted. Section 5(b) of the Proclamation states that: “The Secretary of Labor shall, in consultation with the Secretary of Homeland Security, as soon as practicable, and consistent with applicable law, consider promulgating regulations or take other appropriate action to ensure that the presence in the United States of aliens who have been admitted or otherwise provided a benefit, or who are seeking admission or a benefit, pursuant to an EB-2 or EB-3 immigrant visa or an H-1B nonimmigrant visa does not disadvantage United States workers in violation of section 212(a)(5)(A) or (n)(1) of the INA (8 U.S.C. 1182(a)(5)(A) or (n)(1))”.  INA 212(a)(5) renders a foreign national who seeks to enter the United States to perform skilled or unskilled labor is inadmissible unless it has determined that there are not a sufficient number of US workers who are qualified for the same job and the employment of such foreign nationals will not affect the wages and working conditions of US workers. Most foreign nationals have already received labor certifications after their employers unsuccessfully conducted a recruitment of U.S. workers in the labor market.   Though this provision does not have any present effect, it seems to enable the administration to take further actions to limit the number of immigrant visa workers in the United States. One could even imagine the provision being invoked to rescind some individuals’ approved labor certifications and I-140 visa petitions, should the administration decide to do so in the future. This would have a devastating impact on the hundreds of thousands of people born in India who have been waiting for green cards in the EB-2 and EB-3 backlogs. Of course, such an action would be challenged in court since INA 204(j) has specifically allowed adjustment of status applicants whose applications have been pending for more than 180 days to “port” to new employers and still keep intact their labor certifications and I-140 visa petitions. Thus, there are provisions in the INA that contemplate that once the labor market has been tested, the test need not be repeated over and over again, even if the foreign national’s green card has been delayed due to  EB-2 and EB-3 backlogs.

Another insidious provision in the Proclamation, section 4(c)(ii), directs the DHS consistent with applicable law to “prevent certain aliens who have final orders of removal; who are inadmissible or deportable from the United States; or who have been arrested for, charged with, or convicted of a criminal offense in the United States, from obtaining eligibility to work in the United States.” While there are existing provisions in the INA that deem foreign nationals inadmissible for all of the above reasons, one who has been charged or arrested of a criminal offense should not be deprived of eligibility to work in the United States if the charges were dismissed or proved baseless, and the foreign national did not admit to the essential elements of a crime that would render him/her inadmissible.

The Proclamation stands to have a devastating impact on individuals in a variety of scenarios.  Due to numerous travel restrictions that have been put in place as a result of COVID-19, many individuals may have left the United States with a valid visa that has expired while that have been trapped outside the country. Under the new Proclamation, these individuals would not be able to reenter the United States. Family members of a principal visa holder are likely to be similarly impacted. One such situation arises when a principal visa holder was in the United States on the effective date of the Proclamation, but has dependent family members who are currently outside the U.S. without a valid visa. Because individuals who were inside the United States on June 24th, 2020 are exempt from the proclamation, David Isaacson is of the opinion that  family members of an individual who is in the United States are not “accompanying or following to join” an individual whose entry is suspended. Thus, spouses and children of an individual who is exempt from the Proclamation should arguably be able to reenter the United States, but one does not have any faith whether Trump’s State Department will agree with this perfectly reasonable interpretation. Indeed, although the proclamation clearly states that it will not apply to one who was present in the United States on June 24, 2020, the State Department seems to be indicating on Twitter that if such a person leaves, a visa will not be issued during the validity of the proclamation. This seems to be inconsistent with a plain reading of Section 3(i) that states that the proclamation will apply to an individual who “is outside the United States on the effective date of this proclamation.”

The situation is more complicated when reversed, however, with a principal visa holder, for example an H-1B, abroad and his/her H-4 spouse is in the United States. It is unclear how the Proclamation would apply to the H-4 spouse in this situation. Even if the H-4 spouse currently is in valid status, they would only be able to remain in the United States for a limited period of time before being deemed to be in violation of their status. The USCIS allows dependents of nonimmigrant visa holders to remain in the United States while the principal is temporarily outside the country. At the same time, USCIS prevent the “parking” of dependents in the United States for extended periods of time if the principal nonimmigrant worker only comes for occasional work visits.    Thus, if the H-1B is stranded abroad for several months until the end of the ban, which could potentially be extended beyond the end of 2020 depending on who wins in the presidential election this November, the H-4 spouse may no longer be considered to be in valid status. If the principal H-1B spouse’s job has been terminated, this would imperil the status of the H-4 spouse and children even sooner.

As with the April Proclamation, Trump relied on section 212(f) of the Immigration and Nationality Act (INA) to ban nonimmigrant workers. Although Trump also derived authority from 212(f) to issue the travel bans, the third iteration of which was upheld by the US Supreme Court in Trump v. Hawaii, there may be a basis to distinguish the latest Proclamations from the travel bans (see Building the Case to Challenge Trump’s Immigration Bans). The president cannot wholesale re-write laws enacted by Congress, and decide the sort of immigrant he prefers over another based on personal whim and prejudice (see also  Reflecting on the Supreme Court DACA Decision in Comparison to Trump’s Immigration Bans. In its recent decision on DACA, the Supreme Court held that the administration has to factor in reliance interests before rescinding a benefit under the APA). This most recent Proclamation represents another attempt by the administration to draw artificial distinctions between certain categories of immigrants. The J visa category, for example, is impacted only “to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program”. Other categories of J visas were exempted from the proclamation, including the student and alien physician categories. The Proclamation also excludes other categories of nonimmigrant visas, including treaty trader (E-1) and investor (E-2) categories, entirely. Lawsuits are bound to be filed not just by H-1B visa holders separated from their families, as they would be the most sympathetic plaintiffs, but also by large multinational corporations whose highly placed executive who would otherwise be able to enter on the L-1A visa has been banned.

In conclusion, this proclamation disproportionately impacts Indians the most as they are the largest users of the H-1B visa. It is no coincidence that in 2016 Steve Bannon, who was then a strategist  to Trump and chairman of Brietbart News expressed concern that too many  CEOs of successful Silicon Valley tech companies were immigrants from Asia. Many of them came to the United on an H-1B, which has been targeted by this proclamation. This sort of hostility against immigrants has been expressed frequently by Trump and his senior advisor Stephen Miller. Brietbart News, from which Miller and other xenophobes in the Trump administration draw inspiration, has consistently railed against Indian immigrants and H-1B visa holders.  The proclamation will not protect American jobs by cruelly separating the H-1B worker from the H-4 spouse and children, many of them who have been in the US for many years waiting for their green cards in the EB-2 and EB-3 backlogs. Nor will this proclamation bring back American jobs when it bans a specialized knowledge intracompany transferee on an L-1 visa who had in depth knowledge of a company’s products and can help it to grow in the United States, which in turn would create more jobs.   While the proclamation flunks the economic test, for the xenophobe it is a dream come true as it incorporates an exhaustive wish list for restricting immigration under the cover of the pandemic that would otherwise have been impossible to pass through Congress.

*Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as a law clerk at Cyrus D. Mehta & Partners PLLC.

 

 

Cyrus Mehta

Reflecting on the Supreme Court DACA Decision in Comparison to Trump’s Immigration Bans

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On June 18, 2020, the Supreme Court in Department of Homeland Security v. Regents of the University of California ruled that Elaine C. Duke, then-Acting Secretary of the Department of Homeland Security (DHS), violated the Administrative Procedure Act (APA) in 2017 when she rescinded the Deferred Action for Childhood Arrivals (DACA) program, in place since 2012, at the direction of the Attorney General. DACA granted certain people who entered the United States as children the ability to apply for a two-year “forbearance of removal” and to be eligible for work authorization and various benefits. There are approximately 700,000 DACA recipients.

The Court noted in its decision that the Department of Homeland Security may rescind DACA and that the dispute instead was primarily about the procedure the agency followed in doing so. The government had argued that its decision was unreviewable, but the Court disagreed. Duke’s brief explanation  -“Taking into consideration the Supreme Court’s and the Fifth Circuit’s rulings in the ongoing litigation, and the September 4, 2017 letter from the Attorney General, it is clear that the June 15, 2012 DACA program should be terminated”- was so inadequate as to make the decision “arbitrary and capricious,” Chief Justice Roberts said. While DHS Secretary Nielsen came up with a more elaborate explanation nine months later in response to an unfavorable Federal District Court ruling, Roberts said that it was a “foundational principle of administrative law” that an agency, once challenged, has to defend its action on the grounds it initially invoked, not on an after-the-fact rationalization, unless it wants to restart from scratch the process of arriving at a decision.

For several reasons, the Court found the rescission of DACA to be “arbitrary and capricious,” noting that “[w]e do not decide whether DACA or its rescission are sound policies,” but only “whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.” The appropriate recourse, the Court found, was “to remand to DHS so that it may consider the problem anew.”

USCIS subsequently issued a statement calling DACA recipients “illegal aliens” and asserting that the Court’s decision “has no basis in law and merely delays the President’s lawful ability to end the illegal [DACA] amnesty program.”

While the Trump administration may think it is easy to rescind DACA again if it provides a better rationale, there is more to Chief Justice Roberts’ opinion than meets the eye from page 24 onward as he faults the administration for not factoring reliance interests. DACA recipients have enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance on the DACA program. The consequences of the rescission would “radiate outward” to DACA recipients’ families, including their 200,000 US citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. Justice Roberts also cited a Brief for 143 Businesses as Amici Curiae,  which estimated that  hiring and training replacements would cost employers $6.3 billion.  In addition, excluding DACA recipients from the lawful labor force may result in the loss of $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Trump will be smacked down again as justifying the rescission with such heavy duty reliance interests will be a tall order for a xenophobe like him.

It is not hypocritical to support President Obama’s executive action, DACA, while objecting to President Trump’s executive actions. Indeed, a Presidential Proclamation is expected imminently to suspend the entry of many nonimmigrant workers, possibly until the end of the year. This comes closely following the heels of Trump’s  Presidential Proclamation that took effect April 23, 2020 suspending the entry of many immigrants outside the United States for 60 days, with some exceptions. I have  fiercely criticized Trump’s use of INA 212(f) to rewrite the INA. Trump’s proclamations restrict immigration and cause great hardship to both immigrants and American families and businesses.  The impending ban on suspending H-1B visas entries and scrapping H-4 work authorization, have long  been cherished by xenophobes in the Trump administration, under the big lie of speeding economic recovery during the pandemic crisis. Deferred action, or forbearance,   under DACA is qualitatively different from Trump using INA 212(f) to preclude entire preference categories of immigrants, or entire countries’ worth of immigrants, as Trump has done.  Deferred action is not unprecedented in the way that barring whole countries or whole preference categories under 212(f) is.  Trump’s abuse of INA 212(f) to rewrite the INA is based on his hostility towards immigration and immigrants. It must be opposed, and notwithstanding Trump v. Hawaii, which upheld the Muslim ban, his subsequent bans are distinguishable as they conflict with provisions of the INA that have been crafted and enacted by Congress, in addition to being outright hostile and cruel.

Perhaps, the Supreme Court’s emphasis on reliance interests would be a strong ground to challenge Trump’s next suspension on nonimmigrant visa entrants. When an agency changes course, as DHS did with the DACA rescission, the Supreme Court stated that it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” Encino Motorcars, LLC v. Navarro, 579 U. S. ___, ___ (2016) (quoting Fox Television, 556 U. S., at 515). “It would be arbitrary and capricious to ignore such matters.” Id., at 515. The Duke memorandum did exactly that, and Trump’s next ban will also do that.

 

Cyrus Mehta

Ethics for Immigration Lawyers During COVID-19

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Based on my video presentation at a  Practising Law Institute One Hour Briefing  entitled Ethics and Immigration: Spotlight on Select Rules and Client Representation during Covid-19, I drew up some frequently answered questions (FAQs) that might be helpful to  immigration lawyers. Immigration lawyers have adapted to work remotely from home during the Covid-19 pandemic, which may require the lawyer to pay attention to ethical issues. Even if many parts of the country are reopening, remote work is likely to continue into the foreseeable future.

Remote work does raise potential conundrums for immigration lawyers as some of the work might still need to be performed at the office. Although USCIS has relaxed some deadlines, voluminous paper based filings may still be required to be printed from commercial copying machines at a lawyer’s office to be filed by a deadline to preserve status. Mail from immigration agencies is being sent to the office too. Filing fees are mostly drawn on checks and attached to the petition or application. What are the ethical implications for immigration lawyers in this new era?

My PowerPoint puts a spotlight on select ethical issues and citations to the relevant ethical rules,  http://blog.cyrusmehta.com/andromeda/wp-content/uploads/2020/06/05-19-20_1500_124921_Mehta-003v1.pptx. The PLI program, which got excellent reviews,  is available on demand and there will be no charge for registration if done before June 30, 2020.

1. Are lawyers bound by ethical rules even during disasters?

Ethical rules are in full effect and have not been relaxed or suspended for lawyers. For a useful overview, see Michigan Bar Ethics Guidance during Covid-19, https://www.michbar.org/opinions/ethics/COVID-19 . Lawyers have been through other disasters such as 9/11, Hurricane Katrina, Hurricane Sandy  and are essential during crises to help clients with their changing legal needs. As part of competent representation under ABA Model Rule 1.1, lawyers must stay abreast of all changes in immigration policy relating to Covid-19 that may impact their clients. Lawyers must still provide diligent representation under ABA Model Rule 1.3 notwithstanding the hardships and challenges they might face. Under ABA Model Rule 1.4, the lawyer must also communicate with the client even if both lawyer and client are remote, and must keep the client reasonably informed about the status of the matter.

Lawyers are also required to have disaster preparedness plans. See ABA Formal Ethics Opinion 482, https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_482.pdf

2. How are immigration lawyers working remotely during Covid-19?

Immigration lawyers have learned how to work from home since the Covid-19 crisis. Many forms, supporting letters and briefs can be prepared remotely. Some work performed by administrative staff may still have to be performed at the office, such collecting mail and printing and dispatching voluminous submissions. Client communications can mostly take place over video or the telephone.  Staff meetings and supervision can also take place remotely. USCIS has allowed for scanned signatures so long as the wet signature exists and can be produced when required.

3. What is the USCIS Wet Signature Policy?

The USCIS has announced that for forms requiring an original “wet” signature, per form instructions, USCIS will accept electronically reproduced original signatures for the duration of the national emergency. This temporary change only applies to signatures. All other form instructions should be followed when completing a form.

Individuals or entities that submit documents bearing an electronically reproduced original signature must also retain copies of the original documents containing the “wet” signature.  USCIS may, at any time, request the original documents, which if not produced, could negatively impact the adjudication of the immigration benefit.

It is advisable for lawyers to instruct their clients to preserve the wet signature, or alternatively, to send the form containing the wet signature to their offices even after the application has been submitted.

Further details of the USCIS signature policy are available at https://www.uscis.gov/news/alerts/uscis-announces-flexibility-submitting-required-signatures-during-covid-19-national-emergency

 

4. Are there any confidentiality concerns while working from home during Covid-19?

ABA Model Rule 1.6 provides that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted under one of the exceptions under 1.6(b). For recent guidance regarding working from home, see Pennsylvania Bar Association Formal Op. 2020-300, https://www.technethics.com/pennsylvania-bar-association-formal-opinion-2020-300-ethical-obligations-for-lawyers-working-remotely

The lawyer must be vigilant regarding protecting client confidentiality when working from home. Here are some pointers:

  • Ensure that client communications remain private – especially when family members are around or when Amazon’s Alexa may listen in!
  • Client related work paper product should be shredded rather than placed in the recycling basket with newspapers.
  • Use Virtual Private networks rather than Free Wi-Fi.
  • Use strong passwords and 2 factor authentication.
  • Ensure that Zoom Video Conferences are secure.

 

5. What are some of the ethical considerations regarding supervision of non-lawyers?

 

Under New York Rule 5.3:

  • A law firm shall ensure that the work of nonlawyers who work for the firm is adequately supervised, as appropriate. A lawyer with direct supervisory authority over a nonlawyer shall adequately supervise the work of the nonlawyer, as appropriate. In either case, the degree of supervision required is that which is reasonable under the circumstances, taking into account factors such as the experience of the person whose work is being supervised, the amount of work involved in a particular matter and the likelihood that ethical problems might arise in the course of working on the matter.

Non-lawyers who print out and dispatch submissions at the office must be carefully supervised, whether onsite or remote,  as documents and exhibits can get left out or not be collated in the intended format. Printers can stop printing during the middle of big print jobs. Moreover, mail from USCIS and other agencies must be carefully reviewed and accounted for, and deadlines recorded.

 

6. What if I missed a deadline to file an extension of status for a client for a Covid-19 related reason?

UCIS has indicated that it will excuse untimely filings for extension of status pursuant to 8 CFR 214.1(c)(4)  and  change of status pursuant to  8 CFR 248.1(c) for Covid-19 related reasons.

In order to successfully invoke USCIS’s discretion to excuse a late filing, one must demonstrate that the delay was due to extraordinary circumstances beyond the control of the client and the delay was commensurate to the circumstances.  If the attorney or the client got corona virus, or had to quarantine because they were in close contact with someone who contracted the virus, this could potentially constitute an extraordinary circumstance for failing to file timely. A lawyer’s inability to file timely due to a shutdown order that prevented him or her from accessing files or the mail may also constitute an extraordinary circumstance.

8 CFR 214.1(c)(4) is reproduced below:

Timely filing and maintenance of status. An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant;

(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

 

7. What sort of conflicts of interests should I be concerned about between clients when the salary is reduced and working conditions change?

Immigration practice often involves representing two or more clients such as the employer and employee. If the employer wishes to reduce the salary of an H-1B worker, care should be taken that the employer is still complying with H-1B rules regarding meeting the required wage, and that the advice given to the employer will not adversely impact the employee client, unless both clients give informed consent. For example, if the employer wishes to reduce the wage below the prevailing wage, the position may have to become a part time position. The employer will have to obtain a new Labor Condition Application reflecting the part time wage and hours, and then the employer must file an amended H-1B petition. Since the H-1B worker will be adversely impact as a result of a reduced wage, the lawyer who represents the employer and H-1B worker must get the informed consent of both clients before undertaking the amendment from full time to part time employment.

For further scenarios regarding changes in working conditions, see http://blog.cyrusmehta.com/2020/03/faq-on-changes-in-salary-and-other-working-conditions-for-h-1b-workers-during-the-covid-19-crisis.html

 

8. What if I fall sick or die upon contracting the corona virus?

If the lawyer is part of a firm with other lawyers, it would be less problematic for other lawyers in the firm to take care of the lawyer’s matters. If the lawyer is a sole practitioner, Comment 5 to ABA Model Rule 1.3, Duty of Diligence, requires the lawyer to prepare a plan that would designate another competent lawyer to review client files, notify each client of the lawyer’s  death or disability, and determine whether there is a need for immediate protection action.

 

 

 

 

Cyrus Mehta

Using a Sledgehammer to Crack a Nut: Trump Proclamation Bans Chinese Students and Researchers Linked to China’s “Military-Civil Fusion Strategy”

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President Trump has issued a proclamation limiting Chinese students wishing to study in the United States to undergraduates under certain conditions, and limiting Chinese researchers. The proclamation states that the People’s Republic of China (PRC) uses some Chinese students, mostly post-graduate students and post-doctoral researchers, to operate as “non-traditional collectors of intellectual property” in the United States. President Trump said that he therefore has determined that the entry of certain PRC nationals seeking to enter the United States “pursuant to an F or J visa to study or conduct research in the United States would be detrimental to the interests of the United States.”

The proclamation specifically bans nonimmigrants who enter on 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 receives funding from or who currently is employed by, studies at, or conducts research at or on behalf of, or 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”.  The proclamation defines the term “military-civil fusion strategy” as 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.

President Trump has again relied on INA 212(f) to issue this ban on Chinese nationals who enter the US on an F or J visa who are associated with the vague Chinese “military-civil fusion strategy.” This is another case of Trump using 212(f) to rewrite immigration law. Given the vagueness of linking students to China’s military-civil fusion strategy, it would empower consular officers, and even CBP officials, to deny a visa or admission to just about any graduate student or researcher from China as the proclamation does not set any parameters. Trump’s proclamation will unfortunately also result in needless stereotyping. Just as so many people were branded as communists during the “red scare” under the McCarthy era, graduate students from China will also be associated with China’s military-civil fusion strategy. Although the ban is thought to impact 3,000 out of 360,000 Chinese students, many more can be impacted for mere suspicion of being linked to Chinese military-civil fusion strategy.

While there is evidence that the Chinese military has sponsored military scientists to study abroad described as a process of picking flowers in foreign lands to make honey in China, the overall benefits that Chinese graduate students and researchers bring to US universities far outweigh the supposed perils of benefiting China’s military progress. American universities will get adversely impacted if they cannot attract students from China in their graduate and doctoral programs who pay the full freight in tuition fees. When Chinese researchers study in the US and write research papers, they adopt the US model and their papers are peer reviewed before being selected for publication in English that can be accessed by anyone, and not just by the Chinese military. Moreover, 90% of Chinese students are still in the US a decade since they came.

Moreover, there are enough provisions in the INA that would allow a consular officer to deny a visa. In addition to denying an F-1 visa under the usual INA 214(b) for demonstrating immigrant intent, an applicant for a student or research visa can also be denied for security grounds under INA 212(a)(3). Thus, Trump’s latest Chinese ban is akin to using a sledgehammer to crack a nut. It also bypasses Congress authority to amend the INA. In fact, there is a proposed bill sponsored by Senators Cotton and Blackburn that would be even more sweeping by prohibiting t0 Chinese nationals from receiving visas to the United States for graduate or post-graduate studies in STEM fields. The fact that it will be unlikely for these Senators to pass such a draconian bill through both houses of Congress does not justify Trump’s proclamation that rewrites the INA.

The proclamation also contemplates revoking the visas of affected Chinese students and researchers who are already in the US. Under other circumstances, when a nonimmigrant’s visa is revoked while in the US, they can continue to maintain status, but will need to obtain a new visa upon departing the US. Chinese students subject to the ban will likely not be able to apply for new F-1 or J-1 visa unless they qualify for one of the limited exceptions.

Finally, the proclamation leaves open the possibility of further restrictions as it also calls for agency review of “nonimmigrant and immigrant programs” and recommendations for “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.”