1. 1-129 Form Deemed Export Attestation UTHSC May 16, 2011

2. Basic Introduction  The U.S. government regulates the transfer of controlled items and technical data to foreign nationals under the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).  For the first time the new Form I-129 incorporates export control regulations into the visa petition process.  As of February 20, 2011, the new I-129 form requires the employers sponsoring workers in the H-1B, H-1B1, L-1, and O-1A nonimmigrant categories to certify their compliance with deemed export licensing requirements.  Specifically, for technology or technical data to which workers have access, the employer must review the EAR and ITAR and determine that either:  1) a license is not required to release such technology or technical data to the foreign worker or  2) a license is required and the employer will prevent access to the controlled technology or technical data until and unless the employer receives the required license or other authorization.

3. What are the Export Administration Regulations (EAR)?  The Department of Commerce, Bureau of Industry and Security (BIS), administers the Export Administration Regulations (EAR). The EAR regulate the export of items, materials, technology and software that is predominately civilian in nature, but may have military applications (commonly termed “dual-use”).  The EAR Database may be found at the following website: http://www.access.gpo.gov/bis/ear/ear_data.html http://www.access.gpo.gov/bis/ear/ear_data.html  The BIS maintains the Commerce Control List (CCL) within the EAR which lists items, materials, technology, and software subject to the export licensing authority of BIS. An alphabetical index to the CCL can be found here: http://www.access.gpo.gov/bis/ear/pdf/indexccl.pdf

4. What are the International Traffic in Arms Regulations (ITAR)?  The Department of State administers the International Traffic in Arms Regulations (ITAR). The ITAR regulate the export of defense articles and technology.  Controlled goods and technology in the ITAR are listed in the US Munitions List (USML), which can be found here:  http://www.access.gpo.gov/nara/cfr/waisidx_08/22cfr121_08.htmlhttp://www.access.gpo.gov/nara/cfr/waisidx_08/22cfr121_08.html

5. What is ‘Fundamental Research’?  Fundamental Research is defined in National Security Division Directive 189 as follows: ‘Fundamental research’ means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utilization, the results of which ordinarily are restricted for proprietary or national security reasons.  Importantly, the Fundamental Research Exclusion applies only to the dissemination of research data and information, not to the transmission of material goods.  ‘Fundamental Research’ is excluded from export control laws. However this exclusion is lost if UTHSC accepts any contract clause that:  1) Forbids the participation of foreign persons  2) Gives the sponsor a right to approve publications resulting from the research; or  3) Otherwise operates to restrict participation in research and/or access to and disclosure of research results.

6. Deemed Exports  Q&A from “Deemed Export” Questions and Answers page on www.bis.doc.gov: www.bis.doc.gov  What is a deemed export?  An export of technology or source code (except encryption source code) is "deemed" to take place when it is released to a foreign national within the United States. See §734.2(b)(2)(ii) of the Export Administration Regulations (EAR).  What is a "release" of technology?  Technology is "released" for export when it is available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. See §734.2(b)(3) of the Export Administration Regulations (EAR).

7. Deemed Exports  Q&A from “Deemed Export” Questions and Answers page on www.bis.doc.gov: www.bis.doc.gov  What is "technology"?  Per Part 772 of the Export Administration Regulations (EAR), "technology" is specific information necessary for the "development," "production," or "use" of a product. The General Technology Note states that the "export of technology is controlled according to the provisions of each Category." It further states that "technology required for the development, production, or use of a controlled product remains controlled even when applicable to a product controlled at a lower level." Please note that the terms "required," "development," "production," "use," and "technology" are all defined in Part 772 of the EAR. Controlled technology is that which is listed on the Commerce Control List.

8. Instructions for Completing the Export Control Attestation UTHSC Short Form  Part I requires the signature of the Head of the department the employee will be joining. A Business Manager may sign Part 1 on behalf of the Department Head.  Please make sure to provide the Personnel Number if known.  Also, for question #8, please be sure to provide all the account numbers that will be used to pay the employee.

9. Instructions for Completing the Export Control Attestation UTHSC Short Form  Specific Instructions for Questions #6 and #7  It is recommended that the sponsoring PI provide answers to Questions # 6 and #7.  It is also recommended that the person answering to Questions #6 and #7 review the EAR’s Commerce Control List (CCL) and ITAR’s US Munitions List (USML) for items associated with the employee’s planned research and review the definition of ‘Fundamental Research’.

10. Instructions for Completing the Export Control Attestation UTHSC Short Form  Specific Instructions for Questions #6 and #7 At the time of hiring process, the employer may be unsure to what items and technology the employee will have access and/or if the research the employee will conduct meet s the definition of ‘Fundamental Research’. In these situations, Questions #6 and #7 can be answered as “No”, however, if the answers to these questions change before filing a visa extension, it will be the responsibility of the designated departmental representative to contact the Office of International Affairs and the Export Control Officer and provide them with an update of the employee’s responsibilities.  After Part I is completed, please send the form to the Export Control Compliance Officer at the following address. The Export Control Compliance Officer will then complete Part II. UTHSC Export Control Officer Office of Research Compliance 910 Madison Ave, Suite 650 Memphis, TN 38136