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: isisc@fiu.edu

Office: 305-348-6045

Rosa Saez

Director, Academic Support Services

Email: Rosa.Saez@fiu.edu

Office: 305-348-2168

Nelson Perez

Assistant Compliance Officer

Email: Nelson.Perez1@fiu.edu

Office: 305-348-4726