Export Control Clearance Process for Visa Holders Portions of this presentation were provided by: Steven Brotherton, Partner Fragomen, 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 exceptions available 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 ( 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: 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, Sciences and Education Departments:  Physics  Biology  Chemistry

Requirements for Faculty Hires All other colleges and departments will be required to send the following information via  Full name  Country of Birth  Country of Citizenship and Nationality  Relationship of Foreign National to FIU (i.e. POI, Research Associate, Instructor, etc.) Once this information is received, the visual compliance search and clearance process will take place.

The Process The process is as follows: 1. As soon as a visa application is started, depending on the requirement, the appropriate HR Liaison sends the blank questionnaire to the sponsoring person to fill out. HR Liaison should never complete this form on behalf of the PI or sponsor. 2. Said person fills it out and sends it back to the liaison. 3.The liaison sends the questionnaire for Virtual Compliance search to Nelson Perez, Compliance Specialist,

The Process (cont.) 4. Both the questionnaire and the virtual compliance search results are reviewed; additional information might be required or revisions to the form might be needed. 5. The final determination is sent via to the person processing the visa (Fragomen or ISSS, with copy to the HR Liaison, visa sponsor and Priscilla Johnson and Rosa Saez in 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.

Centralized Export Controls Compliance Program [Export Control Administrator / Liaisons]

Questions & Answers

Contact Information  Isis Carbajal de Garcia Senior University Counsel Office:  Rosa Saez Director, Academic Support Services Office:  Nelson Perez Compliance Specialist Office: