Section 1 Short title
This Act may be cited as the “Countering China’s Theft of American Research and Innovation Act” or the “CCTARI Act”.
Countering China’s Theft of American Research and Innovation Act
A BILL
To amend the Homeland Security Act of 2002 to provide for enhanced visa security, and for other purposes.
Sec. 2 Visa security
Establishment— Not later than 90 days after the date of the enactment of this Act, the interagency working group established under section 1746(a) of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92) shall commence a review of the current policies and procedures of the Department of Homeland Security and Department of State for the purpose of identifying, investigating, and preventing the illicit transfer of sensitive technologies and research from United States institutions of higher education and research institutions through more effective visa security operations and improved protections for such sensitive technologies.
Objectives—
Analysis of current visa issuance and admission procedures— The interagency working group referred to in subsection (a) shall—
analyze the current visa application process, and the role of the Department of Homeland Security and the Department of State in such process, including the screening of visa applicants against appropriate criminal, intelligence, national security, terrorism, and other databases and information maintained by the Federal Government, and make recommendations to the Secretaries of such Departments to better screen, identify, and refuse entry to individuals who seek to enter the United States to engage in the illicit transfer of sensitive technologies from United States institutions of higher educations or research institutions;
evaluate current policies for refusing visas on grounds that an individual is likely to enter the United States to engage in the illicit transfer of sensitive technologies and recommend updates to the Foreign Affairs Manual and other agency guidance to clarify when and how visas can be refused on such grounds; and
analyze current screening procedures at United States ports of entry and make recommendations to the Secretaries of such Departments to better identify individuals who seek to enter the United States to engage in such illicit transfer of sensitive technologies.
National security review of certain nonimmigrant students— The interagency working group shall recommend procedures and standards for the Department of Homeland Security, in cooperation with other appropriate Federal agencies, to conduct national security reviews of aliens who—
are present in the United States—
in a nonimmigrant classification described in subparagraphs (F), (J), or (M) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) and change from a program of study not related to sensitive technologies to a program of study or significant coursework, research, or laboratory access related to sensitive technologies; or
as a nonimmigrant and seek to change status, pursuant to section 248 of the Immigration and Nationality Act (8 U.S.C. 1258)), to that of a nonimmigrant described in subparagraph (F), (J), or (M) of section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)), for purposes of engaging in a program of study related to sensitive technologies; and
as a result of engaging in a program of study related to sensitive technologies, will have access to information related to operating, installing, maintaining, repairing, overhauling, or refurbishing sensitive technologies or development activities related to sensitive technologies.
Identifying individuals requiring national security review— For purposes of facilitating the identification of individuals described in paragraph (2)(B), the interagency working group shall—
develop a nonpublic list of six-digit Classification of Instructional Programs (CIP) codes for programs of study related to sensitive technologies to be used in reporting required by section 641 of the Immigration and Nationality Act (8 U.S.C. 1372(d)) and related regulations;
recommend to the Secretary of Homeland Security changes, as appropriate, to the Student and Exchange Visitor Information System, or other system designated for such purpose by the Secretary of Homeland Security, to ensure that individuals who seek to engage in programs of study but who will not have access to information related to operating, installing, maintaining, repairing, overhauling, or refurbishing sensitive technologies or development activities related to sensitive technologies are not unnecessarily subjected to national security reviews;
recommend to the Secretary of Homeland Security changes to relevant regulations to ensure that entities certified by the Student and Exchange Visitor Program routinely and accurately report the program of study and other necessary information in the Student and Exchange Visitor Information System, or other system designated for such purpose by the Secretary of Homeland Security, for each nonimmigrant described in subparagraph (F), (J), or (M) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) who is enrolled in such entity; and
identify mechanisms for the Department of Homeland Security, in cooperation with other appropriate Federal agencies, to order the removal of and make ineligible for future nonimmigrant classification described in subparagraphs (F), (J), or (M) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) individuals who may be identified following pursuant to national security reviews conducted in accordance with paragraph (2).
Identifying gaps in authority to address national security threats— Not later than one year after the date of the enactment of this Act, the interagency working group shall identify deficiencies in existing legal authorities determined to be an impediment in achieving the recommendations described in subparagraphs (B) and (C) of paragraph (3), and recommend to the appropriate congressional committees legislative solutions to address such deficiencies.
Composition— In addition to the members specified in section 1746(a)(2) of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92), for purposes of carrying out the review required under subsection (a), the interagency working group consult with the following:
U.S. Customs and Border Protection, Office of Field Operations.
U.S. Immigration and Customs Enforcement, Student and Exchange Visitor Program.
U.S. Immigration and Customs Enforcement, Counterterrorism and Criminal Exploitation Unit.
U.S. Immigration and Customs Enforcement, Visa Security Program.
The Department of Homeland Security, Office of Intelligence and Analysis.
The Federal Bureau of Investigation.
At least two representatives from the Department of State, Bureau of Consular Affairs.
Private sector and higher education personnel, as appropriate and to a degree that would not detrimentally impact any ongoing law enforcement investigation or intelligence operation, as determined by the Secretary of Homeland Security.
Consultation— In carrying out the objectives described in subsection (b), the interagency working group shall coordinate and consult regularly with the National Science, Technology, and Security Roundtable established under section 1746(b) of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92).
Report— Not later than one year after the commencement of the review required under subsection (a), the interagency working group shall submit to the appropriate congressional committees a report—
detailing the results of such review and the analyses and evaluation required under subsection (b)(1); and
identifying any legislative solutions necessary to improve the ability of the Department of Homeland Security, the Department of State, or both, to identify, investigate, and prevent the illicit transfer of sensitive technologies from United States institutions of higher education and research institutions as a result of programs of study related to sensitive technologies undertaken by aliens described in subparagraph (F), (J), or (M) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)).
Definitions— In this section:
Appropriate congressional committees— The term “appropriate congressional committees” means the Committee on Homeland Security, the Committee on the Judiciary, the Committee on Armed Services, and the Committee on Foreign Affairs of the House of Representatives and the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, the Committee on Armed Services, and the Committee on Foreign Relations of the Senate.
Institution of higher education— The term “institution of higher education” has the meaning given such term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).
Program of study— The term “program of study” means any degree program, field of study, significant coursework, research, or laboratory access related to sensitive technologies, or other academic activity required to be reported pursuant to section 641(a) of the Omnibus Consolidated Appropriations Act, 1997 (Public Law 104–208 (8 U.S.C. 1372(a))).
Sensitive technologies— The term “sensitive technologies” has the meaning given such term in paragraph (8) of section 428(e) of the Homeland Security Act of 2002 (6 U.S.C. 236(e)), as added by section 3.
Sec. 3 Visa security
Program scope— Paragraph (1) of section 428(e) of the Homeland Security Act of 2002 (6 U.S.C. 236(e)) is amended—
by striking “The Secretary” and inserting the following:
“(A) Authorization—The Secretary”
by adding at the end the following new subparagraph:
“(B) Risk-based assignments
“(i) In general—Assignments under subparagraph (A) shall be made—
“(I) in a risk-based manner;
“(II) considering the criteria described in clause (ii); and
“(III) in accordance with National Security Decision Directive 38 of June 2, 1982, or any superseding presidential directive concerning staffing at diplomatic and consular posts.
“(ii) Criteria described—The criteria described in this clause are the following:
“(I) The number of nationals of the subject country who were identified in United States Government databases related to the identities of known or suspected terrorists during the previous two years.
“(II) Information on the cooperation of such country with the counterterrorism efforts of the United States.
“(III) Information analyzing the presence, activity, or movement of terrorist organizations (as such term is defined in section 212(a)(3)(B)(vi) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi))) within or through such country.
“(IV) The number of formal objections and denials based on derogatory information issued through the interagency Security Advisory Opinion process.
“(V) Countries identified as a strategic competitor in the “Summary of the 2018 National Defense Strategy of the United States of America: Sharpening the American Military’s Competitive Edge” issued by the Department of Defense pursuant to section 113(g)(1)(A) of title 10, United States Code, or any successor document.
“(VI) The number of cases involving counterintelligence, illicit technology transfer, and counterproliferation related to the identities of nationals of such country.
“(VII) Information on the cooperation of such country with the counterintelligence, countering nontraditional collection, illicit technology transfer, and counterproliferation efforts of the United States, including information on foreign government-owned infrastructure and organizations dedicated to such matters.
“(VIII) The adequacy of the border and immigration control of such country.
“(IX) Any other criteria the Secretary determines appropriate.
“(iii) Prioritization—The Secretary shall, until December 31, 2024, prioritize the establishment of new overseas assignments made under this subsection to diplomatic and consular posts in countries that are strategic competitors with the goal of countering the exploitation or illicit transfer of sensitive technologies by aliens described in subparagraph (F), (J), or (M) of section 101(a)(15) of such Act (8 U.S.C. 1101(a)(15)).”
Screening— Paragraph (2) of section 428(e) of the Homeland Security Act of 2002 (6 U.S.C. 236(e)) is amended—
by redesignating subparagraph (C) as subparagraph (D); and
by inserting after subparagraph (B) the following new subparagraph:
“(C) Review visa applications of aliens against appropriate criminal, national security, and terrorism databases or other relevant information maintained by the Federal Government to improve the detection and examination of aliens whose entry into the United States would pose a substantial risk of the illicit transfer of sensitive technologies.”
Definition— Subsection (e) of section 428 of the Homeland Security Act of 2002 (6 U.S.C. 236(e)) is amended by inserting at the end the following new paragraph:
“(8) Definition—In this subsection, the term “sensitive technologies” means—
“(A) areas of research or technology that require additional protection, as established by the interagency working group in accordance with section 1746(a)(3)(E)(i)(III) of the National Defense Authorization Act for Fiscal Year 2020 (Public Law 116–92);
“(B) emerging and foundational technologies identified through the interagency process established under section 1758 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law 115–232);
“(C) sciences, technologies, and associated programs of study at an institution of higher education, related to energy, nuclear science, nuclear engineering, or a related field for which an alien who is a citizen of Iran would be denied a visa to participate in coursework pursuant to section 501 of the Iran Threat Reduction and Syria Human Rights Act of 2012 (22 U.S.C. 8771); and
“(D) technologies and items included on the Commerce Control List, the United States Munitions List, the Nuclear Regulatory Commission Controls, or the Technology Alert List.”
Memorandum of understanding— Not later than 18 months days after the date of the enactment of this Act, the Secretary of Homeland Security and the Secretary of State shall jointly develop and submit to the appropriate congressional committees a memorandum of understanding detailing the responsibilities of and procedures used by Department of Homeland Security personnel assigned to diplomatic and consular posts under section 428 of the Homeland Security Act of 2002, as amended by this section, including visa security vetting and screening activities, the collection and distribution of relevant fees, and the sharing of information on visa refusals based on derogatory information issued through the interagency Security Advisory Opinion process.
Machine readable technology pilot program—
In general— Not later than one year after the date of the enactment of this Act, the Secretary of Homeland Security and the Secretary of State shall jointly commence a pilot program at a United States diplomatic or consular post in a country with a high volume of individuals who are known to have engaged in government sponsored technology transfer campaigns. The pilot program shall—
be conducted for not fewer than 365 days; and
assess opportunities to enhance security vetting, including the use of machine-readable technology and applicant interviews, to better defend research or sensitive technologies in the United States from foreign government sponsored technology transfer campaigns.
Machine readable technology— The Secretary of Homeland Security and the Secretary of State shall jointly, as part of the pilot program under paragraph (1)—
deploy and test equipment and technology to ensure that all documents collected in connection with visa applications are stored in a machine-readable and content-searchable format compatible and shareable between the Department of Homeland Security and the Department of State, and as appropriate, other interagency partners;
collect supplemental documents from visa applicants in accordance with the requirements under subparagraph (A), as appropriate, and ensure appropriate personnel from the Department of Homeland Security and the Department of State have access to such documents for visa security vetting purposes; and
evaluate the use of such technology and supplemental documents in improving the efficacy and efficiency of visa security vetting.
Applicant interviews— The Secretary of Homeland Security, in coordination with the Secretary of State, shall determine whether additional questions or further documentation requests may be appropriate during visa applicant in-person interviews to improve visa security vetting to address evolving threats to the United States.
Report— Not later than 420 days after the initiation of the pilot program under paragraph (1), the Secretary of Homeland Security and the Secretary of State shall jointly submit to the appropriate congressional committees and other appropriate Federal partners a report on the following:
The results of the pilot program.
Recommendations for machine-readable and content searchable equipment and technology and supplemental documents under paragraph (2).
Recommendations for additional interview questions and further documentation requests under paragraph (3).
A determination as to whether and where to expand the use of technologies evaluated during the pilot program.
Definitions— In this section:
Appropriate congressional committees— The term “appropriate congressional committees” means—
the Committee on Homeland Security, the Committee on the Judiciary, and the Committee on Foreign Affairs of the House of Representatives; and
the Committee on Homeland Security and Governmental Affairs, the Committee on the Judiciary, and the Committee on Foreign Relations of the Senate.
Screening— The term “screening” means the review of public, private, or governmental information to assess the accuracy and authenticity of claims made on a visa application, including information contained in Federal Government records to include derogatory information.
Sensitive technologies— The term “sensitive technologies” has the meaning given such term in paragraph (8) of section 428(e) of the Homeland Security Act of 2002 (6 U.S.C. 236(e)), as added by subsection (c)
Strategic competitor— The term “strategic competitor” means a country identified as a strategic competitor to the United States in the “Summary of the 2018 National Defense Strategy of the United States of America: Sharpening the American Military’s Competitive Edge” issued by the Department of Defense pursuant to section 113(g)(1)(A) of title 10, United States Code, or any successor document.
Vetting— The term “vetting” with respect to a visa applicant means the review and use of information collected during screening, any additional information obtained through interviews, consultation with other Federal Government officials, derogatory information, and information drawn from other sources to reach a determination regarding a national security concern related to the visa applicant.