Employers who seek H-1B, H-1B1, L-l or O-1A classification on behalf of an employee or potential employee are required to answer the Export Control questions in Part 6 of Form I-129, Petition for Nonimmigrant Status. This is an extremely complex area of the law. Even if you feel that export regulations have no implication for your business, you need to at least familiarize yourself with the issue to determine what steps you will need to take before you can sign the I-129 Petition.
Federal law prohibits the "export" of controlled technology and technical data to certain foreign nationals in the United States without a license. In completing Part 6, the petitioning employer must certify that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that either (1) a license is not required to release the technology to the beneficiary, or (2) a license is required and the petitioner will prevent the beneficiary's access to the technology until the petitioner has secured a license or other authorization.
"Technology" and "technical data" that are controlled for release to foreign persons are identified on the Export Administration Regulations (EAR) Commerce Control List (CCL) and the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers the EAR. The Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR. The EAR uses the term "technology" to refer to information for the development, production or use of "dual-use" products or software. "Technology" that is required for the development, production or use of items on the EAR's CCL may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use.
An export of controlled technology or technical data can occur when it is disclosed to or transferred to a foreign person, whether in the United States or abroad. Specifically, Section 734.2(bX2Xii) of the EAR (15 CFR $734.2(bX2)(ii)) states that an export of technology to a foreigln national in the United States is "deemed to be an export to the home country” or countries of the foreign national." This is commonly referred to as the "deemed export" rule. While the ITAR does not use the phrase "deemed exports," the ITAR contains a similar concept. Section 120.17(a)(3) of the ITAR (22 CFR $120.17(a)(3)) states that an export occurs when "technical data" is disclosed (including oral or visual disclosure) or transferred to a foreign person in the United States. Therefore, if an export license is required to export EAR controlled
technology or ITAR controlled technical data to a certain country, an export license or other authorization will be required to disclose or transfer such technology to a foreign national of that country who is located in the United States.
It is advisable to reach out to the appropriate office at your organization that handles or would handle export control issues. Offices that might typically be charged with export control include: the Provost Office, Compliance Office, General Counsel Office, Institutional Research, Office of Sponsored Programs, Offrce of Research, Grant Accounting, etc. If there is no such office, consult with a senior level person to determine who will sign the petition and the best approach. This may include consulting with outside export counsel.
2016 © Madison | Piper PC. All rights reserved.
Federal law prohibits the "export" of controlled technology and technical data to certain foreign nationals in the United States without a license. In completing Part 6, the petitioning employer must certify that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that either (1) a license is not required to release the technology to the beneficiary, or (2) a license is required and the petitioner will prevent the beneficiary's access to the technology until the petitioner has secured a license or other authorization.
"Technology" and "technical data" that are controlled for release to foreign persons are identified on the Export Administration Regulations (EAR) Commerce Control List (CCL) and the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers the EAR. The Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR. The EAR uses the term "technology" to refer to information for the development, production or use of "dual-use" products or software. "Technology" that is required for the development, production or use of items on the EAR's CCL may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use.
An export of controlled technology or technical data can occur when it is disclosed to or transferred to a foreign person, whether in the United States or abroad. Specifically, Section 734.2(bX2Xii) of the EAR (15 CFR $734.2(bX2)(ii)) states that an export of technology to a foreigln national in the United States is "deemed to be an export to the home country” or countries of the foreign national." This is commonly referred to as the "deemed export" rule. While the ITAR does not use the phrase "deemed exports," the ITAR contains a similar concept. Section 120.17(a)(3) of the ITAR (22 CFR $120.17(a)(3)) states that an export occurs when "technical data" is disclosed (including oral or visual disclosure) or transferred to a foreign person in the United States. Therefore, if an export license is required to export EAR controlled
technology or ITAR controlled technical data to a certain country, an export license or other authorization will be required to disclose or transfer such technology to a foreign national of that country who is located in the United States.
It is advisable to reach out to the appropriate office at your organization that handles or would handle export control issues. Offices that might typically be charged with export control include: the Provost Office, Compliance Office, General Counsel Office, Institutional Research, Office of Sponsored Programs, Offrce of Research, Grant Accounting, etc. If there is no such office, consult with a senior level person to determine who will sign the petition and the best approach. This may include consulting with outside export counsel.
2016 © Madison | Piper PC. All rights reserved.