It is important that researchers understand that foreign talent recruitment programs are characterized by their activities, features, intents, or requirements. They are not necessarily characterized by having a formal “program” name or an official designation by the foreign government. A researcher may be participating in a foreign talent recruitment program because of the activities that they are performing, regardless of whether their activities are associated with a formal “program”.
Foreign Talent Recruitment Programs
The U.S. Government and federal sponsors have raised significant concerns with “foreign talent recruitment programs” and “malign foreign talent recruitment programs”.
As discussed below, researchers should understand that there are critical differences between “malign foreign talent recruitment programs” and “foreign talent recruitment programs” (also sometimes referred to as “foreign government-sponsored talent recruitment programs”). Though any country can sponsor a foreign talent recruitment program, the U.S. Government is particularly concerned with programs affiliated with China, North Korea, Russia, and Iran.
The U.S. Government has expressed concerns that participation in a foreign talent recruitment program could lead to undisclosed conflicts of interest or commitment, the inappropriate transfer of federally-funded research to foreign governments, violation of export control laws, and theft of intellectual property.
CHIPS and Science Act
The CHIPS and Science Act of 2022 (the “CHIPS and Science Act”) requires that each federal research agency establish a policy requiring that covered individuals (including senior and key personnel) certify that they are not part of a “Malign Foreign Talent Recruitment Program” (defined below) in the proposal submission and annually thereafter. The CHIPS and Science Act also prohibits research and development awards from being made for any proposal in which a covered individual is participating in a Malign Foreign Talent Recruitment Program.
Pursuant to the CHIPS and Science Act, covered individuals who are a current party to a Malign Foreign Talent Recruitment Program are not eligible to serve as senior/key personnel on federal awards.
As of May 2024, individuals identified as senior/key personnel on any NSF award must certify that the individual is not a party to a Malign Foreign Talent Recruitment Program prior to proposal submission and annually thereafter. Other agencies will adopt this certification requirement over time.
Malign Foreign Talent Recruitment Programs
How to identify a malign foreign talent recruitment program
Generally, a Malign Foreign Talent Recruitment Program is a program, position, or activity that meets one of the elements of 1, 2, and 3 below.
- The program, position, or activity is sponsored by or based in China, Russia, North Korea, or Iran, or is sponsored by a specific institution or foreign talent program identified by the Department of Defense.
- The program, position, or activity includes compensation or promises of future compensation (defined broadly to include items such as cash, in-kind compensation, research funding, honorific titles, complimentary travel, career advancement opportunities, and other things of non de minimis value).
- The program, position, or activity includes an individual engaging in problematic activities in exchange for the compensation described in (2) above. The activities are specified in items (i) – (ix) in the full definition below, and include activities such as engaging in the unauthorized transfer of IP, being required not to disclose the program, position, or activity to the University or a federal research agency, being required to recruit individuals to enroll in the program, position or activity, or being required to engage in work that would result in substantial overlap or duplication with a federal award.
Other warning signs
A Malign Foreign Talent Recruitment Program will sometimes include the following characteristics:
- The compensation provided to the individual is significantly more than what would be expected for the activities to be performed.
- Individuals are required to file patents in the foreign country where the program takes place, or the program requires that intellectual property developed during the course of the program not be reported to an individual’s U.S. institution.
- The program allows for continued employment at a U.S. institution while simultaneously receiving compensation from a foreign institution or program.
reach out with questions
If you have any questions about whether a program you are currently participating in, have participated in, or are considering participating in could be considered a Malign Foreign Talent Recruitment Program, reach out to the University’s Research Security Officer (joe.doyle@rochester.edu) for consultation. You may also contact your Dean, Research Dean or ORPA to discuss the program.
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. 2358 note; Public Law 115-232);** or
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. 2358 note; Public Law 115-232).**
*The term “foreign country of concern” means the People’s Republic of China, the Democratic People’s Republic of Korea, the Russian Federation, the Islamic Republic of Iran, or any other country determined to be a country of concern by the Secretary of State. (Source: Section 10637 of the CHIPS Act)
** For the lists referenced in section (ii) and (iii) above, see pages 17 – 21 of these Department of Defense materials.
The following are not considered Malign Foreign Talent Recruitment Programs unless such activities are 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):
(i) making scholarly presentations and publishing written materials regarding scientific information not otherwise controlled under current law;
(ii) participation 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;
(iii) advising a foreign student enrolled at an institution of higher education or writing a recommendation for such a student, at such student’s request.
Source: NSPM-33 Implementation Guidance
Disclosing participation
Disclosure to federal agencies and the University is critical with respect to foreign talent recruitment programs, and researchers should err on the side of transparency. In addition to prohibiting participating in a “Malign Foreign Talent Recruitment Program,” the CHIPS and Science Act requires that individuals disclose whether they are party to any type of “foreign talent recruitment program” (as defined below).
The “Common Disclosure Form” for “Biographical Sketch” and “Current and Pending (Other) Support” requires that individuals disclose contracts associated with participation in programs sponsored by foreign governments, instrumentalities, or entities, including foreign talent recruitment programs. The Common Disclosure Forms will begin to be utilized by NSF beginning May 2024, and other federal agencies will adopt the forms over time.
There may be multiple avenues that researchers should disclose their participation to federal agencies (including through Current and Pending (Other) Support, Biographical Sketch and Foreign Component disclosures). Reference the University’s guidance regarding “Disclosing Collaboration and Support” for more details on disclosure obligations. If you believe that you are or may have participated in a foreign talent recruitment program that has not been disclosed to your federal sponsors, please contact your Dean, Research Dean or ORPA to discuss to disclosure and other compliance obligations.
All University faculty are required to certify whether they are participants in a foreign talent recruitment program as part of annual Outside Interest reporting.
Failure to disclose participation in a foreign talent recruitment program could lead to legal liability for individual researchers and the University.
If you have questions about whether a program you are currently participating in, have participated in, or are considering participating in could be considered a foreign talent recruitment program, reach out to the University’s Research Security Officer (joe.doyle@rochester.edu) for consultation. You may also contact your Dean, Research Dean or ORPA to discuss the program.
Definition: Foreign talent recruitment program
A “foreign talent recruitment program”* is defined as follows:
Effort organized, managed, or funded by a foreign government, or a foreign government instrumentality or 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). Some foreign talent recruitment programs operate with the intent to import or otherwise acquire from abroad, sometimes through illicit means, proprietary technology or software, unpublished data and methods, and intellectual property to further the military modernization goals and/or economic goals of a foreign government. Many, but not all, programs aim to incentivize the targeted individual to relocate physically to the foreign state for the above purpose. Some programs allow for or encourage continued employment at United States research facilities or receipt of Federal research funds while concurrently working at and/or receiving compensation from a foreign institution, and some direct participants not to disclose their participation to United States entities. Compensation could take many forms including cash, research funding, complimentary foreign travel, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation.
Source: NSPM-33 Implementation Guidance
*This guidance utilizes the simplified term “Foreign Talent Recruitment Program” rather than “Foreign government-sponsored talent recruitment program” utilized in the NSPM-33 Implementation Guidance.
Additional details
The Department of Defense (DoD) has issued a “Decision Matrix” that the department intends to use to inform how it will assess factors associated with a researcher’s collaborations in making decisions regarding fundamental research proposals submitted to DoD’s various components. For the period after August 9, 2024, indicators of participation in a Malign Foreign Talent Recruitment Program meeting any of the criteria of the CHIPS and Science Act will be considered a “prohibited factor” for a researcher, which would preclude the researcher from receiving funding from DoD. For the period after August 9, 2022, indicators of participation in a Malign Foreign Talent Recruitment Program meeting any of the criteria of the CHIPS and Science Act will be considered a “discouraged” factor by DoD with “mitigation measures required” or rejection of a proposal if mitigation is not possible. Mitigation measures could potentially include replacing individuals from projects that are deemed a research security risk.
In June 2024, the National Science Foundation (NSF) announced the Trusted Research Using Safeguards and Transparency (TRUST) framework, which will guide NSF in assessing grant proposals for potential national security risks. NSF intends to use information provided in proposal submissions and elsewhere to assess risk on a project-by-project basis. NSF’s TRUST decision tree will include three branches: (1) assessing active appointments, positions, and research support, (2) identifying instances of nondisclosure of appointments, activities, and sources of research support, and (3) assessing potential risks to national security. NSF will use this analysis to determine whether risk mitigation or management may be required for a project.
Although covered individuals are already prohibited from participating in Malign Foreign Talent Recruitment Programs, NSF will likely review active appointments, positions, and research support disclosed during proposal submission, as well as other data available to NSF, for indications that a covered individual (1) may be actively participating in a Malign Foreign Talent Recruitment Program, or (2) has not previously disclosed participation in a Malign Foreign Talent Recruitment Program.
NSF will begin a piloting the TRUST framework to quantum-related proposals in October 2024.
U.S. Department of Energy (DOE) contractor employees, including University researchers funded by DOE contracts or subcontracts, are prohibited from participating in certain foreign talent recruitment programs that are sponsored or affiliated with a “foreign country of risk”. This restriction does not apply to DOE grants or cooperative agreements as of the date of this guidance. In addition, the University must disclose to DOE whether applicable personnel are participating in a foreign talent recruitment program.
DOE defines a “foreign government-sponsored talent recruitment program” as follows:
An effort directly or indirectly organized, managed, or funded by a foreign government to recruit science and technology professionals or students (regardless of citizenship or national origin, and whether having a full-time or part-time position). Some foreign government-sponsored talent recruitment programs operate with the intent to import or otherwise acquire from abroad, sometimes through illicit means, proprietary technology or software, unpublished data and methods, and intellectual property to further the military modernization goals and/or economic goals of a foreign government. Many, but not all, programs aim to incentivize the targeted individual to physically relocate to the foreign state for the above purpose. Some programs allow for or encourage continued employment at U.S. research facilities or receipt of Federal research funds while concurrently working at and/or receiving compensation from a foreign institution, and some direct participants not to disclose their participation to U.S. entities. Compensation could take many forms including cash, research funding, complimentary foreign travel, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation. DOE O 486.1A.
Reach out
Questions and additional support
Contact the University’s Research Security Officer (joe.doyle@rochester.edu) with questions or for a consultation. You can also reach out to your Dean, Research Dean or ORPA.