Depending on the technology that will be released to the foreign national worker in the course of employment, the employer may be required to obtain an export license from the Commerce Department’s Bureau of Industry and Security (BIS) or the State Department’s Directorate of Defense Trade Controls.
The EAR and ITAR prohibit the release or “export” of controlled technology and technical data to foreign nationals in the U.S. without authorization from the U.S. government.
The type of technology and technical data that is considered “controlled” for this purpose is listed on the EAR’s Commerce Control List (CCL) and the ITAR’s U.S. Munitions List (USML).
When such technology or technical data is released to a foreign national, it is a “deemed export” to that person’s country of nationality.
The EAR and ITAR, therefore, require employers to obtain a license from the U.S. government before releasing this type of technology or technical data to foreign national employees, even if the information never leaves the company’s facility.
While many types of technology or technical data are not considered controlled, the deemed export rule could apply to technologies as varied as vehicle components that are designed specifically for military vehicles, certain encryption technology and software, and drawings of pipes for nuclear power plants.
Under the new attestation requirements, any employer petitioning for a nonimmigrant employee in the H-1B, L-1 or O-1A visa categories must certify on Form I-129 that it has reviewed the EAR and ITAR and determined that 1) no license is required from the U.S. government for release of the technology or technical data; or 2) that a license is required and the employer will prevent access of the technology or technical data by the nonimmigrant employee until the required license is obtained.
Compliance with the deemed export rule requires careful review of the applicable regulations and full consideration of the offered position and the type of technology or technical data to which the employee will have access.
The EAR regulations (found at 15 CFR Parts 770-774) and the ITAR regulations (found at 22 CFR Parts 120-130) prevent controlled technology with sensitive military, law enforcement, anti-terrorism, or similar applications from being exported or released to other countries.
An employer who releases controlled technology or technical data to a foreign national in the course of his or her employment, even if the employment is in the United States, is deemed to have “exported” that technology to the person’s country or countries of citizenship.
The EAR and ITAR regulations require employers to obtain export control licenses before releasing controlled technology or technical data to foreign nationals in the United States.
Employers who are military contractors or subcontractors are most likely to be affected, but both universities and private employers will be affected by the changes to Form I-129.
In general, most types of commercially-available technology are not controlled under the EAR and ITAR regulations, or are exempted from the licensing requirement because they are commercially available.
Employers dealing with certain advanced scientific and manufacturing equipment, as well as certain software and software systems, may be subject to licensing requirements for employees from certain countries, depending on whether the technology has military, law enforcement or counterterrorism applications in addition to its normal, civilian uses.
EAR’s Commerce Control List (CCL): http://www.access.gpo.gov/bis/ear/ear_data.html#ccl
The International Traffic in Arms Regulations (ITAR): http://www.pmddtc.state.gov/regulations_laws/itar.html
Deemed Export Resources: http://www.bis.doc.gov/deemedexports/
Frequently Asked Questions (FAQs) – Licensing of Foreign Persons Employed by a U.S. Person: