Employing Foreign Nationals (J-1, H-1B, H-1B1, L-1, O-1 non-
immigrant worker visa applicants)
Background
The U.S. Citizenship and Immigration Services (USCIS) now requires employers to perform a “deemed export attestation.” Specifically, employers will now have to certify that they (1) have reviewed the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR") and (2) have determined whether a license is or is not required before the foreign employee can have access to controlled products or technology. Under certain circumstances, employers may need to obtain a ”deemed export” license for J-1, H-1B, H-1B1, L-1, O-1 non-immigrant worker visa applicants for the release of export controlled technology or technical data that may occur within the U.S. during their employment. The government may deny license requests with regard to certain types of technology. This new certification requirement makes it critically important that employers of foreign nationals understand and comply with U.S. export control laws and regulations, including the deemed export rule. This attestation is certified on USCIS Form I-129.
What is a Deemed Export?
An export usually occurs when a physical transfer of an item or technical data occurs across national boundaries. Less well recognized are "deemed exports" which are the release of U.S.-origin products, software or technical data within the United States to a foreign national even if the item, software, or technical data never actually leaves the United States. Such releases are subject to export licensing requirements, and an unauthorized release to a foreign national within the United States constitutes an export violation. The term "release" is broadly defined and can occur through visual inspection (including via computer networks), verbal exchanges, or the application outside the U.S. of personal knowledge or technical experience acquired in the United States.
Who it affects?
A "foreign national" is anyone who is not a U.S. citizen or lawful permanent resident (i.e., aliens possessing a valid Form I-551 or "green card"), or persons granted asylee or refugee status. At UCF, anyone holding a temporary visa (B, E, F, H-1B, H-3, J-1, L-1, etc.) is treated as a foreign national for these purposes. Employees requiring the deemed export certification could include faculty, visiting scholars, researchers, staff, post-doctoral candidates, technicians, foreign students seeking advanced degrees from U.S. universities, and any foreign person conducting research at U.S. universities or their affiliates.
Is this a new requirement?
U.S. employers have long been required to comply with the "deemed export" rule. The new Form I-129 certification requirement does not change the rule in any way. However, making the certification may prove challenging for employers who wish to hire foreign nationals. Making inaccurate certifications can expose employers to liability for making false statements to the U.S. government, as well as liability for any underlying export control violations.
What do employers at UCF need to do?
UCF Global will request employers to complete a “Non-Immigrant Export Control Questionnaire” and refer certain visa petitions to the Office of Research & Commercialization for a detailed compliance review. This review will examine the applicability of Export Administration Regulations and International Traffic in Arms Regulations with the technology in your academic area to determine if a deemed export license is required. The Office of Research & Commercialization will require employer (sponsoring faculty member) assistance in the compliance review.
Licensing Foreign National Employees
The Office of Research & Commercialization is empowered to file license applications with the Department of State and Department of Commerce for deemed export licensing. The process may take 45 to 90 days after filing of the licensing petition to receive government approval. The U.S. government may not approve all licensing requests. Failure to obtain government licensing before allowing a foreign national access to or participation in export controlled research or failure to file accurate deemed export licensing information may have civil and criminal penalties.
Contacts
UCF has a compliance program in place to assist with this attestation requirement and licensing. Please contact the Office of Research & Commercialization, Export Control Officer at (407) 882-0660 should you require assistance.