Enough! We shall fight back with legal actions.
—— We Need Your Help
# U.S. Presidential Directive 10043 and its implications
On June 3, 2020, former U.S. President Donald Trump signed Presidential Order 10043, which prohibits certain students and scholars from obtaining F/J visas in the name of national security. Nominally, this presidential order restricts entities that help implement civil-military integration programs; however, in reality, it kills the paths of a large number of innocent students to pursue their education.
First, the ban is unclear in its definition of entities that implement civil-military integration programs. The ban itself does not specify the list of entities that "carry out or help carry out a civil-military integration program," but requires further explanation from the Department of Homeland Security. In practice, visa officers incorrectly identified these "institutions" as specific science and technology schools. These science and engineering schools, including Beijing University of Aeronautics and Astronautics, Beijing Institute of Technology, Harbin Institute of Technology, Harbin Engineering University, Northwestern Polytechnic University, Nanjing University of Aeronautics and Astronautics, Nanjing University of Technology, Beijing University of Posts and Telecommunications, and their affiliated independent institutions, undertake a variety of research and programs not unlike those of other top Chinese universities.
# "The list is dynamically updated"
Second, the ban unjustifiably expands the scope of its impact and tends to expand it further. Under the scope of the Presidential Order's prohibition ("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"), any student or scholar who has "worked at, or studied at, or conducted research at or on behalf of," an institution identified as having implemented a civil-military integration program cannot Students and scholars who have "worked at, or studied at," or "researched at or on behalf of," an institution identified as having implemented the MI program are not eligible for visas to travel to the United States for research or study beyond the undergraduate level.
In actual interviews, all students who have studied at these schools or are funded by the China Scholarship Council (CSC) and want to study STEM (Science, Technology, Engineering, Mathematics) majors in the U.S. will be denied a visa across the board, regardless of their undergraduate degree or how many years they have been working since graduation. And because the definition of STEM majors in U.S. schools is very broad, there have been a number of students who thought they were studying business or even art majors who were denied visas by 10043.
On May 9, 2021, at the Shanghai Embassy Open House, the U.S. diplomatic staff personally told the students who asked questions that "this (PP10043 denial) is an internal list decision, and the list is dynamically updated". We also observed that the ban has started to spread to some students from other universities, such as Shanghai Jiao Tong University, Tongji University, University of Electronic Science and Technology, Beijing University of Technology, etc.
# The initial counterattack of Chinese students
According to data released by the Ministry of Foreign Affairs, at least 500 Chinese students had been denied visas by the end of June by 10043, and many more were deterred by a paper ban. The U.S. Embassy recently downplayed the 10043 ban by claiming that it "only targets and affects 2% of F and J visa applicants. However, Georgetown University estimates that about 3,000-5,000 students are affected each year, accounting for 16-27% of Chinese students majoring in STEM in the United States.
As long as Presidential Order 10043 is still in effect, we do not know whether its scope will be expanded, and we do not know whether the U.S. government will use it as a basis to "resurrect" some bans on other visa types to the detriment of more people in the context of the economic setback. In addition, according to the students, not only the F/J visa for the US is hopeless, but also the ATAS for the UK visa, and the student visas for Japan, Australia, and Canada are facing more stringent examination and higher rejection rates. When we see international students share their stories of being rejected by 10043, we can't help but take a long breath to cover our tears. We would like to ask why innocent international students always fall victim to politics and why the interests of Chinese in the US are always violated wantonly.
We can only resist! Since 2019, Chinese people at home and abroad have united and have successfully resisted several unfair and unreasonable bills introduced by the Trump administration, including the TikTok ban and the WeChat ban. This time, we set up the "Academics Without Borders (ANB)" support group and sent a joint letter to 50 American universities on behalf of over 1,000 Chinese students, asking for help from the authorities and schools in our home country, and calling on social media platforms and media at home and abroad to unite against the discriminatory ban. At present, several well-known Chinese and English media outlets have spoken out for us. We are also reaching out to more influential stories, both from academic authorities like Science, and mass media like China Daily and CNN.
In early July, the Ministry of Foreign Affairs also responded to the question about 10043 at a press conference, calling for an end to "unwarranted restrictions and suppression of Chinese students, protecting their legitimate rights and interests, and creating a favorable atmosphere for humanistic exchanges and educational cooperation between China and the United States. American universities also responded positively to our joint letter, and the Association of American Universities (AAU) joined 39 other institutions in sending a joint letter to the U.S. Department of State expressing concerns and worries about 10043.
#Lawsuits: the most effective weapon
Unfortunately, to date, 10043 remains in effect and continues to result in widespread visa denials for Chinese students - we have not done enough. While there are many sympathetic and supportive voices in the private sector, the U.S. government continues to take an evasive, watered-down approach. Under U.S. law, when the U.S. government or government officials are the defendant, the defendant will initiate a motion to dismiss the case in order to request the court to dismiss the case; correspondingly, we, as the plaintiff, have the opportunity to rebut the grounds for motion to dismiss. Since the 10043 presidential injunction is full of unreasonable inferences of guilt and discrimination, we believe that in this process, the Biden administration must realize the importance of Chinese students in this matter and the bad influence of 10043. Referring to the litigation process of H1B and WeChat, if the lawsuit is successful, the Biden administration may voluntarily revoke the ban during the litigation process, or the court may suspend the enforcement of the ban. Of course, there are also risks associated with litigation, and we will provide more information below.
According to data released by the Ministry of Foreign Affairs, at least 500 Chinese students had been denied visas by 10043 as of the end of June, and many more have been deterred by a paper ban. The U.S. Embassy recently downplayed the 10043 ban by claiming that it "only targets and affects 2% of F and J visa applicants. However, Georgetown University estimates that about 3,000-5,000 students are affected each year, accounting for 16-27% of Chinese students majoring in STEM in the US.
As long as Presidential Order 10043 is still in effect, we do not know whether its scope will be expanded; we do not know whether the U.S. government will use it as a basis to "resurrect" some bans on other visa types to the detriment of more people in the context of the economic setback. In addition, according to the students, not only the F/J visa for the US is hopeless, but also the ATAS for the UK visa, and the student visas for Japan, Australia, and Canada are facing more stringent examination and higher rejection rates. When we see international students share their stories of being rejected by 10043, we can't help but take a long breath to cover our tears. We would like to ask why innocent international students always fall victim to politics and why the interests of Chinese in the US are always violated wantonly.
We can only resist! Since 2019, Chinese people at home and abroad have united and have successfully resisted several unfair and unreasonable bills introduced by the Trump administration, including the TikTok ban and the WeChat ban. This time, we set up the "Academics Without Borders (ANB)" support group and sent a joint letter to 50 American universities on behalf of over 1,000 Chinese students, asking for help from the authorities and schools in our home country, and calling on social media platforms and media at home and abroad to unite against the discriminatory ban. At present, several well-known Chinese and English media outlets have spoken out for us. We are also reaching out to more influential stories, both from academic authorities like Science, and mass media like China Daily and CNN. In early July, the Ministry of Foreign Affairs also responded to the question about 10043 at a press conference, calling for an end to "unwarranted restrictions and suppression of Chinese students, protecting their legitimate rights and interests, and creating a favorable atmosphere for humanistic exchanges and educational cooperation between China and the United States. American universities also responded positively to our joint letter, and the American Association of Universities (AAU) joined 39 other institutions in sending a joint letter to the U.S. Department of State expressing concerns and worries about 10043.
# Litigation Counsel: Why Ira Kurzban
We consulted with several U.S. attorneys before finalizing our litigation plan, and the attorneys unanimously provided a high estimate of the difficulty of the case, which exceeded our expectations at the time. The U.S. Constitution gives the president considerable power over national security, and it would be difficult for us to get a court to overturn EO 10043 in its entirety. At the same time, however, the lawsuit was not without hope of success. In addition to expanding our influence through litigation and making the Biden administration aware of the unreasonableness of the ban, the vagueness of the ban itself and the simple understanding and brutal enforcement of the ban by visa officials gave us room to sue.
Through multiple contacts and comparisons, we ultimately selected Ira J. Kurzban, a prominent civil rights leader and immigration attorney, to represent us, and Kurzban has a distinguished career in litigation, particularly in tort litigation within the framework of immigration law. He has litigated more than forty cases against the USCIS, winning or securing out-of-court settlements in almost every case. Recent cases most known to the Chinese include a class action lawsuit filed on behalf of over 450 EB-5 investors seeking additional visas in U.S. courts, which won a final judgment in the Court of Appeals on August 21, 2020.
In communications with us, Ira demonstrated his sympathy and enthusiasm for representing the case. At the initial consultation, Ira brought his own interpreter, without charge, to communicate with us in detail about the 10043 case and to follow up with a general legal theory. It will take up to 6 months to achieve preliminary results.
As a leading figure in the U.S. legal community, Ira's representation in the lawsuit itself will provide a significant boost to the case's attention and success rate. He also said he would do his best to call on his own resources to help us get more attention and help.
During the communication process, Mr. Ira showed a more positive attitude and interest in the case than other prominent lawyers. We believe that this enthusiasm for the case will be an important factor in determining the success of the litigation.
At the same time, other attorneys' offers are not intrinsically superior to Mr. Ira's; in summary, we hope to successfully work with Mr. Ira as our attorney for the litigation.
# We need your help
Suing the U.S. government is no easy task. Many of us have already given a great deal of our valuable time to push for the initiation of litigation. But with the high cost of litigation, it is impossible for volunteers, who are all from ordinary families, to solve the problem on their own. Therefore, we are asking students and parents affected by 10043 and those who may be affected by the expansion of the ban in the future to share the cost of the lawsuit. Although it is the international student community that is banned today, if we don't actively respond and fight back, there may be more discriminatory policies against Chinese tomorrow.
Due to legal considerations, we have chosen to launch a fundraising campaign through the GoFundMe platform, which guarantees that all funds will be used only for the anti-10043 lawsuit. Once the money is raised, it will be withdrawn by the attorney representing us and will not be kept or forwarded through volunteers. Withdrawal records and the progress of the lawsuit will also be posted on our website. We include students who have graduated from top schools in China and students who are already pursuing master's and doctoral degrees in the U.S. Perhaps we are not legal professionals, but we have found the best professionals to help us. We are fighting for our rights, but also because the dust of history has fallen on our particular heads, and if we don't fight it, it will become a big mountain that will block the way for more people in the future. We will do all we can to prevent an injunction from becoming the end of the road for thousands of people and many more in the future by initiating lawsuits and other legal channels.
If you would like to contribute to the cost of the lawsuit, please go to the link at the end of this article to participate in the fundraising effort. Please be sure to read the donation instructions carefully before making a donation. Please note that in mainland China, there is no direct access to the GoFundMe website. If you do not have the right tools, please contact a young person around you who has the means to help.