applying for a nonimmigrant visa what’s an export license got … · 2015-05-07 · applying for...

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© 2010 Fox Rothschild

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Applying for a Nonimmigrant Visa

What’s an Export License

Got to do With It?

Presented by:

Robert S. Whitehill, Esquire

Margaret M. Gatti, Esquire

Louis K. Rothberg, Esquire

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Ground Rules

Information Only

(Not Legal Advice!)

Submission of QuestionsChat

Q & A Function

Availability of SlidesUpon Request

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Revised I-129

Starting February 20, 2011, applicants for the

following nonimmigrant visas are required to

complete 3 export control certifications in

Part 6 of their I-129 petitions.

�H-1B

�H-1B1 Chile / Singapore

�L-1

�O-1A

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Part 6 of I-129 Petition

Check Box 1 or Box 2 as appropriate:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitionercertifies that it has reviewed the Export Administration Regulations(EAR) and the International Traffic in Arms Regulations (ITAR) andhas determined that:

� 1. A license is not required from either U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or

� 2. A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

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Part 6 Translation

I certify – under penalty of perjury – that:

1. I have reviewed the EAR and the ITAR with respect to the technology or technical data that I will release or disclose to the foreign national visa beneficiary.

2. In conducting my review of the EAR and ITAR, I have analyzed theextent to which my planned release or disclosure of technology or technical data to the foreign national visa beneficiary requires an EAR license from the U.S. Department of Commerce or an ITAR license from the U.S. Department of State.

3. If I conclude from my EAR and / or ITAR analysis that a license is required, I will apply for such license and prevent the foreign national visa beneficiary from accessing the controlled technology or technical data until and unless I receive the required license.

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Part 6 Commentary

Part 6 certifications on I-129 petitions:

1.Establish a bridge between Immigration Law and Export Control Law.

� Bridge is new � Export Control Law is long-standing.

2.Might reveal previous export control violations

� Voluntary Disclosure Process

3.Export Control violations are strict liability violations

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A WORK VISA IS NOT AN EXPORT LICENSE

� A valid work visa is not an export authorization.

� Employers have always needed to accurately assess the export control status of the technology and / or technical data to which their visa-holding employees will have actual or theoretical access and obtain export licenses as required.

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Employer as Exporter

� A lawful visa-holder worker is a foreign person for export control purposes under export regs

� An employer with a visa-holder employee in the US CAN be deemed by the US Gov to have exported export-controlled technical data or technology to such employee DURING THE ORDINARY COURSE OF EMPLOYMENT

� An employer with a visa-holder employee in the US CAN be deemed by the State Dep’t to have performed an export-controlled defense service for such employee DURING THE ORDINARY COURSE OF EMPLOYMENT

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Revised I-129

In order to Make a truthful and accurate

Part 6 I-129 Certifications after 2/20/2011

� Employers MUST fully understand export control license requirements, and if necessary,

� Apply for and obtain an export license in addition to obtaining the work visa

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Revised I-129

In order to establish that you made a well

reasoned conclusion in order to complete the

Part 6, I-129 Certification, we recommend

that you:- Implement a written decision memorandum

documenting your export control analysis and compliance for each new foreign employee; and

- Place close attention to the remainder of the Webinar!

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•Goods•Services•Technology / Technical Data

Foreign Person in Foreign Country

To

Export?

US Person in Foreign Country

Foreign Person in

United States

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Who qualifies as a “foreign

person”?

� Non-U.S. Citizen� Non-U.S. Green Card Holder � Recipient of Worker Visa (H1B, etc.)

Except when exports are “classified”

“Foreign Person” = Anyone who is not a U.S. Citizen

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Determining Foreign

Person’s Nationality

� Country of Residence� Country of Citizenship � Country of Birth

Export to Foreign Person = Export to Foreign Person’s Country of

Nationality

Export to Foreign Person may require an export license!

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Exports Can be “Actual” or “Deemed”(U.S. perspective)

Deemed Export =Domestic transaction

which U.S. law or

U.S. regulation

construes

to be export

√ Goods

√ Services

√ Technology /Technical Data

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Exports of Technology / Technical Data?

Actual Export:

Disclosure of

technical dataOutside the U.S.

to a Foreign Person

Deemed Export:

Disclosure of

technical data

In the U.S. to a

Foreign Person

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Technology / Technical Data

Information required for:

�Design or Development

�Production, Manufacture or Assembly

�Operation

�Repair, Testing or Maintenance

�Modification of Products

In the form of Blueprints, Drawings, Plans, Photos, Instructions or Documentation

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Technology / Technical Data

Does not include:

Information that is in the Public Domain, i.e.:Information that is generally accessible to the“interested” public in any form orInformation that is available at a public library or

Information that is available through unlimited

distribution at a conference

� Published patents or

� General scientific, mathematical or engineering principles taught at universities or

� “Fundamental research” -- CAREFUL!

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Technical Data Exports Technical Data Exports

Occur When Occur When ……

� Hand Carrying Technical Data outside US

� Traveling with “Loaded” Lap Tops outside US

� Sending E-Mails that contain Technical Data to FP – either in the US or outside the US

� Disclosing Data to Foreign National Visitors --either in the US or outside the US

� Disclosing Technical Data to Foreign National Employees -- either in the US or outside the US

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Disclosing Technical Data to aDisclosing Technical Data to a

Foreign National EmployeeForeign National Employee

(in the U.S. or Abroad)

is an Export

and

May Require an Export License

If the Technical Data is controlled to the

Citizenship or Birth Country of the Foreign National Employee

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Procedures For Foreign National Employees

�Determine need to disclose technical data / technology

�If necessary:�Assess export control jurisdiction

�Conduct prohibited country screenings

�Conduct prohibited & restricted party screenings

�Apply for export license, if required

�Assign escort until license received

�Restrict computer access

�Obtain signed Technical Data Access Agreement

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What does Export Control Jurisdiction

Mean?

Determining

Which

US Laws & US Regulations

Apply to US Exports of

Goods, Services and

Technical Data / Technology

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Export Control Jurisdiction

All U.S. Exports

TWEA Cuba Sanctions

IEEPA Iran & Sudan Sanctions

Defense Article Exports

AECA ITAR

Exports of Dual Use Items

EAA EAR

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Procedures for Jurisdiction

Determination

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ProceduresAnalyze End Use Information to

Determine Export Jurisdiction

Military or Space

�Defense Article

�AECA / ITAR

�DOS / DDTC

�CJR?

Other

�Dual Use Article

�EAA / EAR

�DOC / BIS

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AECA / ITAR Jurisdiction

Administering Agency

DDTCDirectorate of Defense Trade Controls

State Department

Munitions Item (a.k.a Defense Article)

Military or Space?

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DDTC / ITAR Jurisdiction

��Defense Articles / Defense Articles /

Munitions ItemsMunitions Items

��Services relevant to Services relevant to

or involving Defense or involving Defense

Articles Articles

��Technical Data for Technical Data for

Defense ArticlesDefense Articles

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DDTC / ITAR What is a defense service

� Defense Service means furnishing assistance, including training to foreign persons in the US or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of a defense article.

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DDTC / ITAR What is tech data?

� Technical Data means information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of a defense article.

� Technical Data does NOT include by definition that which is in the Public Domainas specifically defined by ITAR 120.11

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WhatWhat is a Defense is a Defense

Article?Article?

1.1. Munitions List Munitions List

ItemItem

(ITAR 121.1)(ITAR 121.1)

�� CategoriesCategories

�� FormatFormat

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Article?Article?

2.2. ItemItem Specially Designed for for

Military or Space Military or Space

ApplicationApplication

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WhatWhat is a is a

Defense Article?Defense Article?

3. Item Specially Modified or Specially Adapted for Military or Space

Application

Significance of Modification /

Adaptation is NOT

a Consideration!

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Article?Article?

4. Significant Military

Equipment (SME)

or “inherently

military”

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Article?Article?

5. Dual Use Item that

imbeds defense

article

(See Through Rule)

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Sometimes

But Not Always

Obvious

What is aDefense Article?

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Obvious !

What is a Defense Article?

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Not Obvious !


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Obvious !


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Not Obvious !


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Munitions Items

Obvious Military Items

Fighter Jets

Non-Obvious Items

Parts of Fighter Jets

Parts of Parts of Fighter Jets

Imbedded Items

Included in Otherwise Commercial Items

(Poisonous Tree / See Through Rule)

U.S. Export Controls

DDTC Jurisdiction

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Determining “Munitions Item” status:

1. Review Munitions List

See ITAR Part 121

2. Designed for a military or space application?

De-Controlled under CJ?

Munitions Item?

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3. Specially modified for a military or space application?

Significance not relevant!

Part by Part determination

Munitions Item?

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4. “Inherently” military, i.e. has significant military or intelligence applications?

Quartz Rate Sensor Chip

(QSR-11 Chip)

Commercial Satellites

Munitions Item?

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5. See Through Rule?

Commercial item imbeds Munitions Item?

QSR-11 Chip

Boeing, Goodrich & L-3

Munitions Item?

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Reality versus potential“Could be” doesn’t matter / count

Military end user is NOT determinative!

Individual item versus product family

USML Category VIII?

ECCN 9A991?

OR

Key Considerations for USML:

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U.S. Export Controls Jurisdiction of DDTC

Munitions ItemsCounterpoint:Counterpoint:

Dual Use ItemsDual Use Items

Uncertain?

File Commodity Jurisdiction File Commodity Jurisdiction Request (CJR) Request (CJR) with DDTCwith DDTC

Do NOT File BIS Classification

Request Treat as USML from filing!

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U.S. Export Controls U.S. Export Controls

Jurisdiction of DDTCJurisdiction of DDTC

Commodity Jurisdiction Request

� Assign DDTC Control� Remove DDTC control

High level of scrutiny High level of scrutiny

High burden of proofHigh burden of proof

� Binding & Authoritative � Supercedes BIS Classification� Recent 7th Circuit Decision!

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ProceduresAnalyze End Use Information to

Determine Export Jurisdiction

Military or Space

�Defense Article

�AECA / ITAR

�DOS / DDTC

�CJR?

Other

�Dual Use Article

�EAA / EAR

�DOC / BIS

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EAA / EAR Jurisdiction

Administering Agency

BISBureau of Industry & Security

Commerce Department

Dual Use Items

Military or Space?

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Jurisdiction of BIS

Dual Use Items�Exclusive Civil \ Commercial

Application

�Civil \ Commercial as well as Military Application

Fully Interchangeable!

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Dual Use Items

Commerce Control List Product Specific ECCN

EAR99

Classification Request

U.S. Export ControlsJurisdiction of BIS

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Top Ten Categories Requiring EAR Licenses

� Materials processing [motion simulators, chemical manufacturing equipment, detection devices

� Materials, Chemicals, Micro-organisms, Toxins

� Nuclear related

� Electronics

� Telecommunications & Information Security

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Top Ten Categories Requiring EAR Licenses

� Propulsion

� Sensors and lasers

� Navigation and Avionics

� Computers, related software and technology

� Marine

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TECHNOLOGY PUBLICLY AVAILABLE

� EAR does not control technology that is publicly available as defined in EAR 734.3(b)(3)

� The ITAR definition of public domain and the EAR definition of publicly available are not the same

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Jurisdiction of BIS

Dual Use ItemsDetermination via:

Commodity Jurisdiction

ORInformed Analysis

(Standard of Strict Liability)

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Why is Determining

Export Control Jurisdiction Important?

AECA / ITAR versus EAA / EAR

1. Different Administering Agencies

2. Different Prohibitions

3. Different Restrictions (License Requirements)

4. Different Licensing Analysis, e.g. nationality by naturalization [EAR] or by birth [ITAR]

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Why is the Determination of Export

Control Jurisdiction Important?

Administering Agencies

AECA / ITAR

State Department’s

Directorate of Defense Trade Controls

(DDTC)

EAA / EAR

Commerce Department’s

Bureau of Industry & Security

(BIS)

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Prohibited Countries

AECA / ITAR

�25 prohibited countries

�See Embargoed CountryChart on DDTC website

EAA / EAR

�5 prohibited countries

�See EAR Embargoed Countries

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Prohibited Buyers / End Users

AECA / ITAR

�Debarred Parties�Denied Parties�SDN’s

�Proliferators

EAA / EAR

�Denied Parties�SDN’s�Proliferators

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Product Restrictions

AECA / ITAR

Product-Specific Licenses

Always Required unless

ITAR License Exemption Available.

EAA / EAR

Product-Specific Licenses Required Sometimes�ECCN�Reason for Control�Country Chart�Exception?

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End User Restrictions

AECA / ITAR

Already licensable based on Product-Specific

Reasons .

EAA / EAR

End Users can Sometimes result in license requirement�Unverified End User�Entity List�Proliferator List

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SCREENING EMPLOYEE

� Must screen each visa-holder employee to insure that s/he is NOT on any US Government list prohibiting or restricting exports to him or her.

� Work visa approval does NOT mean the PARTICULAR employee is cleared to receive any export-controlled technology

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End Use Restrictions

AECA / ITAR

Already licensable based on Product-Specific

Reasons .

EAA / EAR

End Uses can Sometimes result in license requirement�CBP�MT�NP

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Different Analysis

AECA / ITAR EAA / EAR

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Export License Analysis

Jurisdiction?

OFACOFACAECA / ITAR AECA / ITAR

ProhibitionsCountry?

End User?

RestrictionsLicense Required

EAA / EAREAA / EAR

ProhibitionsCountry?

End User?

RestrictionsProduct?

End User?End Use?Red Flag?

License Required? No License Required?

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ITAR and EAR Apply a standard of

“Strict Liability” in assessing

ITAR and EAR Violations!

There is No Margin For Error!

Negligent versus Criminal

Importance of Proper Export Control Jurisdiction Determination

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PUNISHMENT FOR VIOLATIONS

� EAR civil violations can lead to a civil monetary penalty of $250,000 per violation

� ITAR civil violations can lead to a civil monetary penalty of $500,000 per violation

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PUNISHMENT FOR VIOLATIONS

� There are other possible civil penalties as well as criminal fines and prison sentences. These punishments are far more severe for an employer, than employer punishments for work visa violations

� Recent Criminal Case - Professor at Univ. of Tennessee received 4 years in prison for unlicensed export of tech data to students

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Robert Whitehill

Immigration Law Group

Fox Rothschild LLP

www.foxrothschild.com

Pittsburgh, PA

Direct Dial: 412.394.5595

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Margaret Gatti

Louis Rothberg

Mark Sullivan

International Law Group

Fox Rothschild LLP

www.foxrothschild.com

Philadelphia, PADirect Dial: 215.299.2449

Washington, DCDirect Dial: 202.618.7022

applying for a nonimmigrant visa what’s an export license got … · 2015-05-07 · applying for...

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