APS Files FOIA Request in Response to Revocation of Visas for Chinese Students

September 28, 2020

U.S. Department of State
Office of Information Programs and Services
2201 C Street NW, Suite B266
Washington, DC 20520-0000

To Whom It May Concern:

The American Physical Society (“APS”) submits this letter to the U.S. Department of State as a request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, et seq. for documents and information about the Department’s implementation of a proclamation suspending the entry of certain students and researchers from the People’s Republic of China (“PRC”).

I. Background

On May 29, 2020, President Trump issued a proclamation on the “suspension of entry as nonimmigrants of certain students and researchers from the People’s Republic of China.” See Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China (May 29, 2020) (“the Proclamation” or “Proclamation 10043”), FR Doc. 2020-12217,https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry nonimmigrants-certain-students-researchers-peoples-republic-china. The Proclamation’s suspension of entry applies to “any national of the PRC seeking to enter the United States pursuant to 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.” In addition, the Proclamation delegates to the Secretary of State the responsibility of evaluating whether nationals of the PRC who are currently in the United States should have their visas revoked.

On September 9, 2020, media sources reported that the U.S. State Department had as of that date revoked the visas of more than 1,000 Chinese students and researchers under the Proclamation. Media reporting indicates that these students were not given any explanation as to why their visas were revoked under the Proclamation, nor any opportunity to challenge the revocation.

The APS urgently seeks information to bring transparency to this action so that it, its members, international students, and the public more generally can understand how the Proclamation is being applied by the Administration. As the primary U.S. professional association for physics, the APS and its members have a significant interest in ensuring mobility across national borders of the scientific community. Scientific mobility enables broad participation in global scientific collaborations, and it ensures the United States remains the destination of choice for talented scientists who contribute to U.S. competitiveness and innovation. The APS monitors mobility through various means including periodic surveys of both domestic and international physics students admitted to physics departments at U.S. universities. As part of its ongoing evaluation, APS also assesses the impact of executive actions on both global scientific collaboration and U.S. STEM competitiveness. The APS makes their assessments publicly available to inform the public discussion and policy responses on immigration issues.

While the APS recognizes a national security threat posed by the Chinese Government’s efforts to acquire technology and intellectual property from the United States, the APS is concerned that the Proclamation is overbroad and may be applied to exclude innocent persons who would otherwise make significant contributions to the U.S. scientific enterprise.

II. Requests for Information

APS asks that the below categories of records—or any reasonably segregable portion thereof—be disclosed pursuant to the State Department’s obligations under FOIA. For all of the requests below, the APS limits its requests to records or portions of records that are unclassified and non-privileged.

  1. Documents reflecting some or all of the following information about persons whose legal status or entry into the United States is impacted by the Proclamation:
    1. country of origin;
    2. age;
    3. type of visa requested,
    4. location of visa processing; and
    5. the current status of such applications, including whether the visa application was approved, denied, or remains pending.
  2. Documents reflecting the names of the U.S. institutions those persons were planning to attend.
  3. The form of notice provided to persons whose entry is denied under Section 1.
  4. The unclassified information on which the Department based its decisions to deny entry under Proclamation 10043.
  5. Documents reflecting the names of entities determined to be “an entity in the PRC that implements or supports the PRC’s “military-civil fusion strategy,” as well as any interpretation or guidance reflecting how the Department identifies such entities.
  6. Any “standards or procedures” established by the Secretary of State under Section 3(a) of the Proclamation or “procedures” established by the Secretary of State under Section 3(b) of the Proclamation.
  7. All policies, directives, memoranda, training materials, or guidance concerning the Department’s implementation of Proclamation 10043.
  8. All policies, directives, memoranda, training materials, or guidance relating to Proclamation 10043 that was distributed to embassies and consulates, including the complete text of 9 FAM 302.14-12, the Foreign Affairs Manual section on this Proclamation.
  9. Any documents reflecting the recommendations made to the President under Section 6(b) of the Proclamation.
  10. Any documents reflecting further action taken by the Secretary of State under Section 6(c) of the Proclamation, as well as the report by the Secretary of State to the President required under Section 6(c).

APS requests expedited processing of the above document requests under 5 U.S.C. § 552(a)(6)(E) in light of its compelling need to receive the information. APS is requesting this information to address the necessary and urgent need to evaluate and respond to any additional harm that the Proclamation and related executive action is having on declining U.S. scientific competitiveness and the country’s ability to engage in global scientific collaboration. In particular, international students are making decisions now about whether to apply to U.S. institutions. Lacking any public explanation, the denial of visas will only contribute to the growing view that the United States is unwelcoming to foreigners and thereby diminish the ability of the United States to attract top talent, as the APS has seen in its annual survey of international students. The requested information will enable the APS—in its role as a disseminator of objective information to the public in general, and international students in particular—to provide the appropriate context for the State Department’s decision.

Regardless of whether expedited processing is granted, APS expects that the information requested be made available as soon as practicable. To avoid delays in receiving records, APS requests that records be produced on a rolling basis as they become available.

APS requests a waiver or reduction of fees under 5 U.S.C. § 552(a)(4). For the reasons specified above, disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the State Department’s implementation of the Proclamation, and APS’s requests for information are not primarily in its commercial interest. See 5 U.S.C. § 552(a)(4)(A)(iii).

If the request is denied in whole or in part, APS asks that you justify all deletions by reference to specific FOIA exemptions. APS expects the release of all segregable portions of otherwise exempt material. APS reserves the right to appeal a decision to withhold any information or to deny expedited processing or a waiver of fees.

Thank you for your prompt attention to this matter. Please furnish the applicable records to me at slakey@aps.org. If the records are too large to transmit by email, please send them to:

Francis Slakey
Chief External Affairs Officer
325 5th Street, SE
Washington DC, 20003
(202) 569-0116

Francis Slakey

U.S. Capitol Building