Under U.S. export control regulations, the release of technology or technical data to a foreign national in the U.S. is deemed to be an export to the individual’s home country, even though the release occurs entirely within the United States. This concept is referred to as a “deemed export.” The rationale behind this rule is that a release of technology or technical data to a foreign national is permanent and the individual could apply the knowledge upon return to his/her home country.
In some cases, a U.S. government export license is required prior to the release of technology or technical data to a foreign national. The license requirement is dependent on two factors: (1) the nature of technology that will be released to the foreign national; and (2) the foreign national’s home country.
U.S. export control requirements are complex, especially in an academic setting. For example, Universities may work with a wide range of technologies in various research projects. Though Universities may be able to use a “publicly available” or “public domain” exemption (e.g. under the fundamental research provision) from U.S. export control requirements, the use of such exemption may be unavailable where the project is subject to publication or other restrictions.
Further, enforcement of U.S. export control regulations continues with fines of up to $1,000,000 and 20 years imprisonment in the most egregious cases.
An employer who petitions for an H-1B worker must certify that it has reviewed the U.S. Department of Commerce’s Export Administration Regulations (“EAR”) and the U.S. Department of State’s International Traffic in Arms Regulations (“ITAR”) to determine whether a deemed export license is required to release technology to the foreign worker and, if an export license is required, that the relevant technology will not be released to the foreign national until a license is obtained.
More specifically, the certification reads as follows:
With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms (ITAR) and has determined that:
1. A license is not required from either the US Department of Commerce or the US Department of State to release such technology or technical data to the foreign national; or
2. A license is required from the Department of Commerce and/or 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.
Many foreign nationals employed at universities don't conduct technology-related research, or they either conduct only "fundamental research" or work with "educational information", which is not subject to EAR or ITAR license requirements. Even though such research may be fundamental, deemed export licenses may be required in the conduct of fundamental research if controlled technology or technical data is needed to generate fundamental research results.
This review form collects information that will help determine whether a potential employee may be exposed to export controlled information in the course of his or her duties. The Office of General Counsel must be in receipt of this fully completed and signed form before the I-129 for the H-1B petition will be processed.
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