export control clearance process for visa holders portions of this presentation were provided by:...
TRANSCRIPT
Export Control Clearance
Process for Visa Holders
Portions of this presentation were provided by:
Steven Brotherton, PartnerFragomen, Del Rey, Bernsen & Loewy, LLP
New Export Control Certification Form I-129, Part 6
Export Control Certification: “The BIG ONE”
Various visa types subject to new certification requirement
H-1B, H-1B1 L-1 (except Blanket Ls) O-1A
Not a new legal requirement
Affirmative review and certification required
In most cases an export license is not required:
Who is a Foreign National?
Any Person who is not: A U.S. Citizen; A U.S. Lawful Permanent Resident; A Person Granted Asylum; A Refugee; A Temporary Resident granted amnesty.
Foreign National includes persons with status such as H-1B, H-3, L-1, J-1, F-1 Practical Training, L-1, etc.
Tip: Though the deemed export requirements apply more broadly, the I-129 export control certification is only required for H, L and O petitions.
What is a Deemed A release or transfer of technology, technical data
or know-how to a Foreign National in the U.S. Physical export out of U.S. is NOT required Transfer takes place in the U.S. “Release” could occur by providing access to
data stored on shared network drives
“Deemed” to be an export to the Foreign National’s “Home Country”
May require a U.S. government export license
Government Accounting Office (GAO) Report
Recommendation:
“We recommend that the Secretary of Commerce work with INS to use all existing U.S. government data in its efforts to identify all foreign nationals potentially subject to deemed export licensing requirements.”
The Certification – A Closer Look
EAR
“Dual Use”/Commercial
Controlled items appear on Commerce Control List
A number of exceptionsavailable Examples of EAR Controlled Items: semiconductors
telecommunications
high speed computers
manufacturing equipment
encryption
many others
ITAR
Military/Space Very few exceptions
available; license typically required
ITAR controlled items: Specifically
designed modified adapted configured
…for military/space application
How can a “Deemed Export” Occur?
Providing drawings to a Foreign National employee
Technical conversations/ collaboration with Foreign Nationals
Telephone conversations
Technical training
Working with Foreign National interns or consultants
Collaborations w/ U.S. customers’ Foreign National employees
Access to database that contains controlled technology
THE KEY QUESTION
Do you work with “Controlled Technology?” If so, what Home Countries require an export license?
Until an export license is obtained, do not release Controlled Technology to a foreign national that requires an export license
Involves Review of EAR and ITAR EAR: Commerce Control List, countries controlled at
various levels depending on nature of technology
ITAR: U.S. Munitions List, a license is required prior to release of ITAR technical data to any foreign national
Typical “home countries” with Export Control Issues under EAR
• “Terrorist Supporting States”Cuba, Iran, North Korea, Sudan, Syria
• “Countries of Concern”Former Soviet Republics (Russia, Ukraine), China,
Vietnam, others
• “Friendly Countries”All others (EU Member States, Canada, Mexico,
etc.)
Highest Controls
Lowest Controls
Deemed Export Implications
“Deemed Export” license may be required prior to transfer of controlled technology
License approval takes time (2 - 4+ months) and denial is possible
Significant civil and criminal penalties
Civil penalties up to $500,000 per violation Criminal penalties up to $1,000,000 per
violation and 20 years in prison Denial of export privileges Debarment from U.S. government contracts
Publicly Available/Public Domain Information
Published Information
Open Conference/Meeting
Educational Information
Patents
Fundamental Research
Fundamental Research EAR §734.8
“Basic and applied research in science and engineering, where the resulting information is ordinarily published and shared broadly within the scientific community. Such research can be distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary reasons . . .”
University Fundamental Research EAR §734.8
• Must be conducted at accredited institutions of higher learning in U.S.
• University based research is not considered “fundamental research” if the university or its researchers accept (at the request, for example, of an industrial sponsor) restrictions on publication of scientific and technical information resulting from the project or activity.
• Exemption does not apply to the “use” of controlled equipment.
Requirements for Faculty Hires
The following units and departments will continue preparing the Export Control Questionnaire (http://academic.fiu.edu/academicbudget/www/FinalForms/I-129_Visa_Export_Compliance_Questionnaire.docx):
College of Engineering and Computing, including the School of Computing and Information Sciences
The following three College of Public Health and Social Work Departments: Environmental and Occupational Health Epidemiology Biostatistics
The following three College of Arts and Sciences Departments: Physics Biology Chemistry
Requirements for Faculty Hires
• All other colleges and departments will be required to send to Academic Affairs the following information via e-mail:
Full nameCountry of BirthCountry of Citizenship and NationalityRelationship of Foreign National to FIU (i.e.
POI, Research Associate, Instructor, etc.)Once this information is received in Academic
Affairs, the visual compliance search and clearance process will take place.
The ProcessThe process is as follows:
1. As soon as a visa application is started, the appropriate HR Liaison sends the blank Questionnaire to the sponsoring person to fill out.
2. Said person fills out and sends it back to the liaison.
3. The liaison sends the Questionnaire for Virtual Compliance (if academic affairs it is sent to Priscilla Williams, with copy to Rosa Saez, otherwise it is sent to Claudia Molina).
The Process (cont.)4. Once the Virtual Compliance is completed, the results and the Questionnaire are sent to Isis Carbajal de Garcia, Office of the General Counsel.
5. Both documents are reviewed; additional information might be required or changes to the form might be needed.
6. The final determination is sent via e-mail to the person processing the visa (Fragomen or ISSS, with copy to the HR Liaison, visa sponsor and AA).
Sending Questionnaire
To send questionnaire the “Subject” line is to read:
College/Department ECQ for (last name, first name), (J-1 or H-1), Position [faculty, staff, POI], Country of origin.
Operational
Academic Research Business
Sponsored Research Tech Transfer IT Human Resources Property Management Procurement Finance Legal International Student
Services Environmental Health &
Safety Shipping/Receiving
Teaching-in
U.S.
Teaching-abroad
Online
curriculum
Conferences
Research (Sponsored or
faculty-initiated) o FRE - FRE-covered
projects - Controlled
instruments - Proprietary Data
o Non-FRE - Restricted projects
International Collaborations
Outside Activity
Work for
Others/Service Contracts
Landlord/Tenant relationships
Outside Activity
Spinoffs
Tech Transfer
Centralized Export Controls Compliance Program [Export Control Administrator / Liaisons]
Contact Information Isis Carbajal de Garcia
Deputy General Counsel
Email: [email protected]
Office: 305-348-6045
Rosa Saez
Director, Academic Support Services
Email: [email protected]
Office: 305-348-2168
Nelson Perez
Assistant Compliance Officer
Email: [email protected]
Office: 305-348-4726