Designation of foreign intelligence threats to higher education

(a)

In general

Chapter 33 of title 28, United States Code, is amended by adding at the end the following:

540D.

Designation of foreign intelligence threats to higher education

(a)

Definitions

In this section— (1)the term classified information has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.); (2)the term Director means the Director of the Federal Bureau of Investigation, acting in consultation with the Attorney General, the Secretary of Education, and the Director of National Intelligence; (3)the term foreign actor means— (A)a foreign government or its auxiliary territories, or any component thereof, whether or not recognized by the United States; (B)a foreign-based political organization, not substantially composed of United States persons; (C)a faction of a foreign nation or foreign nations, not substantially composed of United States persons; (D)an entity that is openly acknowledged by a foreign government or foreign governments to be directed and controlled by such foreign government or foreign governments; (E)any partnership, association, corporation, organization, or other combination of persons who acts as an agent, representative, employee, or servant of, or whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a government, organization, faction, or entity described in subparagraph (A), (B), (C), or (D); or (F)any individual who acts as an agent, representative, employee, or servant of, or whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a government, organization, faction, or entity described in subparagraph (A), (B), (C), or (D), unless such individual is a citizen of and domiciled within the United States; (4)the term institution means any institution of higher education, as defined under section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001); (5)the term national security means the national defense, foreign relations, or economic interests of the United States; (6)the term relevant committees of Congress means— (A)the Committee on the Judiciary, the Select Committee on Intelligence, the Committee on Homeland Security and Government Affairs, and the Committee on Health, Education, Labor, and Pensions of the Senate; and (B)the Committee on the Judiciary, the Permanent Select Committee on Intelligence, the Committee on Homeland Security, and the Committee on Education and the Workforce of the House of Representatives; and (7)the term United States person has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801). (b)

Designation

(1)

In general

The Director shall designate a foreign actor as a foreign intelligence threat to higher education, in accordance with this subsection, if the Director finds that the foreign actor has committed, attempted to commit, or conspired to commit, in connection with an institution, one or more of the following: (A)Smuggling goods from the United States, in violation of section 554 of title 18. (B)Espionage, in violation of sections 791 through 799 of title 18. (C)Kidnapping, in violation of section 1201 of title 18. (D)Fraud or misuse of visas, permits, or other documents, in violation of section 1546 of title 18. (E)Aggravated identity theft, in violation of section 1028A of title 18. (F)Fraud or related activity in connection with access devices, in violation of section 1029 of title 18. (G)Fraud or related activity in connection with computers, in violation of section 1030 of title 18. (H)Economic espionage, in violation of section 1831 of title 18. (I)Theft of trade secrets, in violation of section 1832 of title 18. (J)Terrorism, in violation of sections 2331 through 2339D of title 18. (K)Interception or disclosure of wire, oral, or electronic communications, in violation of section 2511 of title 18. (L)A violation of any control on the import or export of defense articles or defense services imposed under section 38 of the Arms Export Control Act (22 U.S.C. 2778). (M)A violation of any control on the export, reexport, and in-country transfer of an item imposed under section 1753 of the Export Control Reform Act of 2018 (50 U.S.C. 4812). (N)An unlawful act described in section 206(a) of the International Emergency Economic Powers Act (50 U.S.C. 1705(a)). (2)

Procedure

(A)

Notice before designation

(i)

To congressional leaders

Not later than 7 days before making a designation under paragraph (1), the Director shall submit to the Speaker and minority leader of the House of Representatives, the President pro tempore, majority leader, and minority leader of the Senate, and the members of the relevant committees of Congress— (I)written notice of the intent of the Director to designate a foreign actor under paragraph (1); and (II)the findings made under paragraph (1) with respect to foreign actor and the factual basis therefor. (ii)

To the Attorney General

Not later than 7 days before making a designation under paragraph (1), the Director shall submit to the Attorney General, for the Attorney General to determine whether further investigation or prosecution is warranted— (I)written notice of the intent of the Director to designate a foreign actor under paragraph (1); and (II)the findings made under paragraph (1) with respect to the foreign actor and the factual basis therefor. (iii)

Protection of classified information

The notice and findings submitted under clauses (i) and (ii) may be in classified form. (B)

Publication in Federal Register

If the Director makes a designation under paragraph (1), the Director shall publish the designation in the Federal Register on the date of the designation. (C)

Effect of designation

For purposes of section 117 of the Higher Education Act of 1965 (20 U.S.C. 1011f), a designation under paragraph (1) shall take effect upon publication under subparagraph (B) of this paragraph. (D)

Effect of designation on lawful status

(i)

Revocation of nonimmigrant visa

The Secretary of State shall revoke the nonimmigrant visa issued to any foreign actor present in the United States immediately after such foreign actor has been designated under paragraph (1). (ii)

Removal

The Secretary of Homeland Security shall initiate removal proceedings against any foreign actor described in clause (i) and expeditiously remove such foreign actor from the United States. (iii)

Ineligibility

Any foreign actor who has been designated under paragraph (1) shall be inadmissible to the United States and ineligible to receive a United States visa or be admitted to the United States. (iv)

Appeal

If a foreign actor appeals a designation under paragraph (1), the consequences described in clauses (i) through (iii) shall be stayed until such appeal has been fully adjudicated. (3)

Record

(A)

In general

In making a designation under paragraph (1), the Director shall create an administrative record. (B)

Classified information

The Director may consider classified information in making a designation under paragraph (1). Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (d). (4)

Period of designation

(A)

In general

A designation under paragraph (1) shall be effective for all purposes until revoked under paragraph (5) or (6) or set aside under subsection (d). (B)

Review of designation upon petition

(i)

In general

The Director shall review the designation of a foreign actor as a foreign intelligence threat to higher education under the procedures set forth in clauses (iii) and (iv) if the designated foreign actor files a petition for revocation within the petition period described in clause (ii). (ii)

Petition period

For purposes of clause (i)— (I)if the designated foreign actor has not previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date on which the designation was made; or (II)if the designated foreign actor has previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date of the determination made under clause (iv) with respect to that petition. (iii)

Procedures

Any foreign actor designated as a foreign intelligence threat to higher education that submits a petition for revocation under this subparagraph shall provide evidence in the petition that the relevant circumstances described in paragraph (1) are sufficiently different from the circumstances that were the basis for the designation such that a revocation with respect to the foreign actor is warranted. (iv)

Determination

(I)

In general

Not later than 180 days after receiving a petition for revocation submitted under this subparagraph, the Director shall make a determination as to such revocation. (II)

Classified information

The Director may consider classified information in making a determination in response to a petition for revocation. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (d). (III)

Publication of determination

A determination made by the Director under this clause shall be published in the Federal Register. (IV)

Procedures

Any revocation of a designation by the Director shall be made in accordance with paragraph (6). (C)

Other review of designation

(i)

In general

If no review has taken place under subparagraph (B) during any 5-year period, the Director shall review the designation of a foreign actor as a foreign intelligence threat to higher education under paragraph (1) in order to determine whether such designation should be revoked pursuant to paragraph (6). (ii)

Procedures

If a review does not take place pursuant to subparagraph (B) in response to a petition for revocation that is filed in accordance with that subparagraph, the review shall be conducted pursuant to procedures established by the Director. The results of such review and the applicable procedures shall not be reviewable in any court. (iii)

Publication of results of review

The Director shall publish any determination made under this subparagraph in the Federal Register. (5)

Revocation by Act of Congress

Congress, by an Act of Congress, may block or revoke a designation made under paragraph (1). (6)

Revocation based on change in circumstances

(A)

In general

The Director may revoke a designation made under paragraph (1) at any time, and shall revoke a designation upon completion of a review conducted pursuant to subparagraphs (B) and (C) of paragraph (4) if the Director finds that— (i)the circumstances that were the basis for the designation have changed in such a manner as to warrant revocation; or (ii)the national security of the United States warrants a revocation. (B)

Procedure

The procedural requirements of paragraphs (2) and (3) shall apply to a revocation under this paragraph. Any revocation shall take effect on the date specified in the revocation or upon publication in the Federal Register if no effective date is specified. (7)

Effect of revocation

The revocation of a designation under paragraph (5) or (6) shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation. (c)

Amendments to a designation

(1)

In general

The Director may amend a designation under subsection (b)(1) if the Director finds that the foreign actor has changed its name, adopted a new alias, dissolved and then reconstituted itself under a different name or names, or merged with another foreign actor. (2)

Procedure

Amendments made to a designation in accordance with paragraph (1) shall be effective upon publication in the Federal Register. Subparagraphs (C) and (D) of subsection (b)(2) shall apply to an amended designation upon such publication. Paragraphs (2)(A)(i), (4), (5), (6), (7), and (8) of subsection (b) shall also apply to an amended designation. (3)

Administrative record

The administrative record shall be corrected to include the amendments as well as any additional relevant information that supports those amendments. (4)

Classified information

The Director may consider classified information in amending a designation in accordance with this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (d). (d)

Judicial review of designation

(1)

In general

Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the foreign actor designated as a foreign intelligence threat to higher education may seek judicial review in the United States Court of Appeals for the District of Columbia Circuit. (2)

Basis of review

Review under this subsection shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation, amended designation, or determination in response to a petition for revocation, in a manner consistent with the Classified Information Procedures Act (18 U.S.C. App.). (3)

Scope of review

The court shall hold unlawful and set aside a designation, amended designation, or determination in response to a petition for revocation the court finds to be— (A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B)contrary to constitutional right, power, privilege, or immunity; (C)in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; (D)lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2); or (E)not in accord with the procedures required by law. (4)

Judicial review invoked

The pendency of an action for judicial review of a designation, amended designation, or determination in response to a petition for revocation shall not affect the application of this section, unless the court issues a final order setting aside the designation, amended designation, or determination in response to a petition for revocation. (e)

Imposition of sanctions under International Emergency Economic Powers Act

(1)

In general

The President may, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)— (A)block and prohibit all transactions in all property and interests in property of a foreign actor designated as a foreign intelligence threat to higher education under subsection (b)(1), if such property and interests in property are in the United States, come within the United States, or are or come within the possession or control of a United States person; or (B) (i)prohibit any institution, and all employees of an institution, from— (I)negotiating or entering into a contract with such a foreign actor; or (II)transferring information developed through research to such a foreign actor; and (ii)require any institution that has a contract with such a foreign actor in effect as of the date on which the foreign actor is designated as a foreign intelligence threat to higher education under subsection (b)(1) to terminate that contract. (2)

Transfer defined

For purposes of paragraph (1)(B)(i)(II), the term transfer, with respect to information, means— (A)an actual shipment or transmission of the information out of the United States, including the sending or taking of information out of the United States, in any manner; (B)releasing or otherwise transferring the information, including technical data, to a foreign person in the United States (commonly referred to as a deemed export); (C)visual or other inspection by a foreign person of the information that reveals information directly or indirectly related to critical technologies; and (D)oral or written exchanges with a foreign person of information, whether or not in the United States. (3)

Inapplicability of national emergency requirement

The requirements of section 202 of the International Emergency Economic Powers Act (50 U.S.C. 1701) shall not apply for purposes of this subsection. (4)

Implementation

The President may exercise all authorities provided under sections 203 and 205 of the International Emergency Economic Powers Act (50 U.S.C. 1702, 1704) to carry out this subsection. (5)

Penalties

A person that violates, attempts to violate, conspires to violate, or causes a violation of paragraph (1) or any regulation, license, or order issued to carry out that paragraph shall be subject to the penalties set forth in subsections (b) and (c) of section 206 of the International Emergency Economic Powers Act (50 U.S.C. 1705) to the same extent as a person that commits an unlawful act described in subsection (a) of that section. (f)

Activities with national security implications

(1)

In general

The Director shall provide the Secretary of Homeland Security with information about any foreign actor who has not been designated under subsection (b) if the foreign actor has engaged in any practice with national security implications, including— (A)transferring uncontrolled, but sensitive technology acquired during the foreign actor’s interactions with academic institutions; (B)significantly changing the nature or type of academic study initially reported by the foreign actor, such as changing his or her major from a nonsensitive field of study to a sensitive field of study; (C)significantly deviating from the terms of a nonimmigrant visa related to the study of technology deemed sensitive in nature; and (D)misrepresenting, omitting, or falsifying any information provided to the Department of State or the Department of Homeland Security regarding the purpose of the foreign actor’s presence in the United States. (2)

Effect of revocation of visa

If the Secretary of Homeland Security orders the revocation of a visa issued to a foreign actor described in paragraph (1), the foreign actor— (A)shall be permitted to voluntarily depart the United States within 10 days; and (B)may be given the opportunity to reapply for a visa outside of the United States. (3)

Effect of failure to voluntarily depart

If a foreign actor described in paragraph (2) chooses not to voluntarily depart the United States, the Secretary of Homeland Security shall provide for the expedited removal of the foreign actor from the United States in accordance with section 238(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1228(a)(3)(B)). (g)

Reports

(1)

In general

Not later than 180 days after the date of enactment of this section, and every year thereafter, the Director shall submit to the relevant committees of Congress a detailed report containing the following: (A)A description and assessment of foreign actors who engage in activities listed in subsection (b)(1). (B)An assessment of the impact of foreign actors who engage in activities listed in subsection (b)(1) on scholarship and research and development in connection with institutions. (C)An assessment of the implementation and operation of the designation process for foreign intelligence threats to higher education established under this section. (D)An assessment of the likely effects of the designation of foreign intelligence threats to higher education on activities listed in subsection (b)(1) in connection with institutions. (2)

Form of reports

The reports required under paragraph (1) shall be submitted in an unclassified form, but may contain a classified annex.

(b)

Deportability; expedited removal

(1)

Deportability

Section 237(a)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)(A)) is amended— (A)by redesignating clause (vi) as clause (vii); and (B)by inserting after clause (v) the following:

(vi)

Foreign intelligence threat to higher education

Any alien who has been designated as a foreign intelligence threat to higher education under section 540D(b) of title 28, United States Code, is deportable.

(2)

Expedited removal

Section 238(a)(3) of the Immigration and Nationality Act (8 U.S.C. 1228(a)(3)) is amended— (A)by redesignating subparagraph (B) as subparagraph (C); and (B)by inserting after subparagraph (A) the following:

(B)The Secretary of Homeland Security shall provide for the expedited removal of aliens who have been designated as a foreign intelligence threat to higher education under section 540D(b) of title 28, United States Code, in the interest of national security.

(c)

Technical and conforming amendment

The table of sections for chapter 33 of title 28, United States Code, is amended by adding at the end the following:

540D. Designation of foreign intelligence threats to higher education.