Guidelines for Federal Research Agencies Regarding Foreign

EXECUTIVE OFFICE OF THE PRESIDENT

WASHINGTON, D.C. 20503

February 14, 2024

MEMORANDUM FOR THE HEADS OF FEDERAL RESEARCH AGENCIES

FROM: ARATI PRABHAKAR

DIRECTOR

OFFICE OF SCIENCE AND TECHNOLOGY POLICY

SUBJECT: Guidelines for Federal Research Agencies Regarding Foreign Talent

Recruitment Programs

These guidelines are issued in accordance with Section 10631(b) of the CHIPS and Science Act of 2022

(“the Act”),

which provides that “the Director of the Office of Science and Technology Policy, in

coordination with the interagency working group established under section 1746 of the National Defense

Authorization Act for Fiscal Year 2020 (42 U.S.C. 6601 note; Public Law 116-92), shall publish and

widely distribute a uniform set of guidelines for Federal research agencies regarding foreign talent

recruitment programs” (emphasis added). Relevant provisions of the Act are codified at 42 U.S.C.

19231 - 19237.

There are two main features of the relevant portions of the Act: it provides that federal research agency

personnel are prohibited from participating in foreign talent recruitment programs, and prohibits certain

individuals substantively involved with preparing award applications or carrying out awards (“covered

individuals”) from participating in malign foreign talent recruitment programs (Sections 10631 and 10638

of the Act). See below for definitions of foreign talent recruitment programs and malign foreign talent

recruitment programs.

Section 10631(d) of the Act requires federal research agencies to issue a policy on foreign talent

recruitment programs. Section 10632(a) of the Act further requires them to issue a specific policy on

malign foreign talent recruitment programs, which must include provisions that, as part of a proposal for a

research and development award from the agency:

“(1) each covered individual listed in such proposal certify that each such individual is not a party

to a malign foreign talent recruitment program … and annually [certify] thereafter for the

duration of the award; and

Public Law 117-167.

(2) each institution of higher education or other organization applying for such an award certify

that each covered individual who is employed by such institution of higher education or other

organization has … complied with the requirement under paragraph (1) [above].”

Guidelines for Federal Personnel

Section 10631 of the Act provides that all personnel of federal research agencies are prohibited from

participating in foreign talent recruitment programs. This includes federal employees, contract employees,

independent contractors, individuals serving under the Intergovernmental Personnel Act of 1970,

Visiting Scientist, Engineering, and Educator (VSEE) appointments,

and special government employees

other than peer reviewers.

Federal research agencies may develop further policies for contractor owned

and operated or government owned and contractor operated institutions as warranted.

Note that the above personnel ordinarily do not include outside visitors or guests temporarily engaged in

research at federal or national (contractor-operated) laboratory or user facilities unless they fall under one

of the categories described above. Additionally, such personnel ordinarily do not include individuals

engaged in strategic technical exchange programs from foreign government agencies or other

organizations, similar to those run by the Department of Defense Personnel Exchange Program,

the

Engineer and Scientist Exchange Program,

or the Transatlantic Diplomatic Fellows Program,

unless

they fall under one of the categories above.

Guidelines for “Covered Individuals” Substantively Involved in Developing or Carrying Out a

Project

Section 10631of the Act prohibits “covered individuals” from participating in a federally funded research

and development project if they are currently participating in a “malign foreign talent recruitment

program.” Sections 10631 and 10632 of the Act provide for covered individuals to disclose if they are a

party to any foreign talent recruitment program, and to certify that they are not a party to a malign foreign

talent recruitment program. Section 10633 provides that federal research agencies may request supporting

documentation from applicants, and take a range of funding-related actions if warranted. To the extent

practicable, recipient institutions are required to prohibit covered individuals participating in malign

42 U.S.C. 4701 et seq.

National Science Foundation Visiting Scientist, Engineer, and Educator Program

https://new.nsf.gov/careers/rotator-programs/visiting-scientist-engineer-and-educator-vsee-program

Participating in any malign foreign talent recruitment program also is prohibited.

10 U.S.C. 311.

Engineer and Scientist Exchange Program: Program Details https://www.safia.hq.af.mil/Force-

Development/Engineer-and-Scientist-Exchange-Program/Program-Details/

Transatlantic Fellow Program Deepens Bonds Between United States and Europe

https://www.state.gov/transatlantic-fellow-program-deepens-bonds-between-united-states-and-europe/

These guidelines do not address or affect an agency’s physical facility safety and security programs, including for

federal or national (contractor-operated) laboratory user facilities. Laboratories and other research institutions often

host visitors and guests involved in other types of talent programs and similar activities that are not in conflict with

the interests of the United States (e.g., the Marie Skłodowska-Curie Fellowship, Japan’s Research Fellowships for

Young Scientists, the Organisation for Economic Co-operation and Development (OECD) Co-operative Research

Programme).

foreign talent recruitment programs from working on projects supported by research and development

awards.

Section 10638 of the Act defines “covered individual” as “an individual who (A) contributes in a

substantive, meaningful way to the scientific development or execution of a research and development

project proposed to be carried out with a research and development award from a Federal research

agency; and (B) is designated as a covered individual by the Federal research agency concerned.”

Agencies may also define other individuals as covered persons as appropriate and consistent with their

mission.

Past Participation in a Foreign Talent Recruitment Program or Malign Foreign Talent

Recruitment Program

The prohibitions in Sections 10631 and 10632 of the Act apply to current and/or ongoing participation in

a foreign talent recruitment program or malign foreign talent recruitment program. Agencies may,

however, apply mitigation and management measures to address past participation consistent with the Act

and these guidelines. Section 10634 of the Act includes provisions for training.

International Collaboration

These guidelines provide below a definition of “foreign talent recruitment program” that excludes certain

international collaboration activities. This exclusion allows federal research agency personnel to engage

in these activities. These activities primarily involve open and reciprocal exchange of scientific

information aimed at advancing international scientific understanding.

Similarly, Section 10632 of the Act requires that agency policies on malign foreign talent recruitment

programs “shall not prohibit” the international collaboration activities that are specified in that statute.

Non-Discrimination

Consistent with Section 10637 of the Act, Title VI of the Civil Rights Act of 1964, the goals of Executive

Orders 13985 and 14091, and applicable agency non-discrimination policy regarding federally conducted

programs and activities, federal research agencies should ensure that policies and activities developed and

implemented pursuant to the Act are carried out in a manner that does not target, stigmatize, or

discriminate against individuals on the basis of race, color, ethnicity, religion, sex (including pregnancy,

sexual orientation, or gender identity), national origin, age (40 or older), disability, and genetic

information (including family medical history). To ensure consistency with the principle of non-

discrimination, agencies will consult with Offices of Civil Rights, or their equivalents, in addition to

bodies charged with the implementation of Executive Orders 13985 and 14091, when considering

methodologies for monitoring and evaluation in this area.

Definitions

Definition of Foreign Talent Recruitment Program

Section 10631 of the Act requires that the Office of Science and Technology Policy (OSTP), in

consultation with the Subcommittee on Research Security of the National Science and Technology

Council (NSTC), establish a definition for a foreign talent recruitment program. As such the following

definition is provided:

A foreign talent recruitment program is any program, position, or activity that includes compensation

in the form of cash, in-kind compensation, including research funding, promised future compensation,

complimentary foreign travel, things of non de minimis value, honorific titles, career advancement

opportunities, or other types of remuneration or consideration directly provided by a foreign country at

any level (national, provincial, or local) or their designee, or an entity based in, funded by, or affiliated

with a foreign country, whether or not directly sponsored by the foreign country, to an individual, whether

directly or indirectly stated in the arrangement, contract, or other documentation at issue.

Consistent with Section 10632(d) of the Act, a foreign talent recruitment program does not include the

following international collaboration activities, so long as the activity is not funded, organized, or

managed by an academic institution or a foreign talent recruitment program on the lists developed under

paragraphs (8) and (9) of Section 1286(c) of the John S. McCain National Defense Authorization Act for

Fiscal Year 2019 (10 U.S.C. 4001 note; Public Law 115-232):

1. Making scholarly presentations and publishing written materials regarding scientific information

not otherwise controlled under current law;

2. Participating in international conferences or other international exchanges, research projects or

programs that involve open and reciprocal exchange of scientific information, and which are

aimed at advancing international scientific understanding and not otherwise controlled under

current law;

3. Advising a foreign student enrolled at an institution of higher education or writing a

recommendation for such a student, at such student's request; and

4. Engaging in the following international activities:

a. Activities that are partly sponsored or otherwise supported by the United States such as

serving as a government appointee to the board of a joint scientific fund (e.g., the U.S.-

Israel Binational Industrial Research and Development Foundation); providing advice to

or otherwise participating in international technical organizations, multilateral scientific

organizations, and standards setting bodies (e.g., the International Telecommunications

Union, Intergovernmental Panel on Climate Change, etc.); participating in a Fulbright

Commission program funded in whole or in part by a host country government; or other

routine international scientific exchanges and interactions such as providing invited

lectures or participating in international peer review panels.

b. Involvement in national or international academies or professional societies that produce

publications in the open scientific literature that are not in conflict with the interests of

the federal research agency (e.g., membership in the Pontifical Academy of Sciences or

The Royal Society).

c. Taking a sabbatical, serving as a visiting scholar, or engaging in continuing education

activities such as receiving a doctorate or professional certification at an institution of

higher education (e.g., the University of Oxford, McGill University) that are not in

conflict with the interests of the federal research agency.

d. Receiving awards for research and development which serve to enhance the prestige of

the federal research agency (e.g., the Nobel Prize).

e. Other international activities determined appropriate by the federal research agency head

or designee.

See also, more generally, National Institute of Standards and Technology: Strengthening Disclosure Requirements

and Assessing Training Could Improve Research Security, GAO-24-106074 (Dec 14, 2023), p. 10 (“A foreign talent

recruitment program is an effort organized, managed, or funded by a foreign government, or a foreign government

entity, to recruit science and technology professionals or students (regardless of citizenship or national origin, or

whether having a full-time or part-time position)).”

Definition of Malign Foreign Talent Recruitment Program

(As defined by Section 10638(4) of the Act)

“A malign foreign talent recruitment program is:

(A) any program, position, or activity that includes compensation in the form of cash, in-kind

compensation, including research funding, promised future compensation, complimentary foreign

travel, things of non de minimis value, honorific titles, career advancement opportunities, or other

types of remuneration or consideration directly provided by a foreign country at any level

(national, provincial, or local) or their designee, or an entity based in, funded by, or affiliated with

a foreign country, whether or not directly sponsored by the foreign country, to the targeted

individual, whether directly or indirectly stated in the arrangement, contract, or other

documentation at issue, in exchange for the individual—

(i) engaging in the unauthorized transfer of intellectual property, materials, data products, or

other nonpublic information owned by a United States entity or developed with a Federal

research and development award to the government of a foreign country or an entity

based in, funded by, or affiliated with a foreign country regardless of whether that

government or entity provided support for the development of the intellectual property,

materials, or data products;

(ii) being required to recruit trainees or researchers to enroll in such program, position, or

activity;

(iii) establishing a laboratory or company, accepting a faculty position, or undertaking any

other employment or appointment in a foreign country or with an entity based in, funded

by, or affiliated with a foreign country if such activities are in violation of the standard

terms and conditions of a Federal research and development award;

(iv) being unable to terminate the foreign talent recruitment program contract or agreement

except in extraordinary circumstances;

(v) through funding or effort related to the foreign talent recruitment program, being limited

in the capacity to carry out a research and development award or required to engage in

work that would result in substantial overlap or duplication with a Federal research and

development award;

(vi) being required to apply for and successfully receive funding from the sponsoring foreign

government's funding agencies with the sponsoring foreign organization as the recipient;

(vii) being required to omit acknowledgment of the recipient institution with which the

individual is affiliated, or the Federal research agency sponsoring the research and

development award, contrary to the institutional policies or standard terms and conditions

of the Federal research and development award;

(viii) being required to not disclose to the Federal research agency or employing institution the

participation of such individual in such program, position, or activity; or

(ix) having a conflict of interest or conflict of commitment contrary to the standard terms and

conditions of the Federal research and development award; and

(B) a program that is sponsored by—

(i) a foreign country of concern or an entity based in a foreign country of concern, whether

or not directly sponsored by the foreign country of concern;

(ii) an academic institution on the list developed under section 1286(c)(8) of the John S.

McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C. 4001 note;

Public Law 115-232); or

See definitions in the Act, Section 10637.

(iii) a foreign talent recruitment program on the list developed under section 1286(c)(9) of the

John S. McCain National Defense Authorization Act for Fiscal Year 2019 (10 U.S.C.

4001 note; Public Law 115-232).”