Export Control Rules And The US Immigration System
Most employers, employees and immigration lawyers are unaware of a set of rules that can create serious liability if they are ignored. They are the export licensing requirements for foreign nationals and in the post-9/11 world of immigration, they are taking on more importance. The “deemed export” regulations hold that foreign nationals who gain access to controlled technologies are equivalent to a company exporting the technology to foreign markets. This is the case even when a company does not even export actual goods or services.
The deemed export rules are administered by the US Department of Commerce (though the State Department has a separate smaller program covering international trafficking in armaments (ITAR)). The rules mainly cover the defense and high tech industries as well as various other industries that use sensitive technologies.
“The export control provisions of the
What action relating to a foreign national is deemed to trigger the export control rules?
An export is defined by 15
Discussing with a foreign national in the
What kinds of foreign nationals are exempt from the
For purposes of
For dual nationals, the Commerce Department generally considers the last place of permanent residence or the last place citizenship was obtained to be the nationality for purposes of determining the country coverage under the deemed export rules.
How would technology or software be “transferred” to a foreign national?
A company must “release” a technology to the foreign national. “Release” is defined as
Is there special language employers need to put on documents that are deemed to discuss controlled technologies?
Yes, the following language needs to be placed on such documents:
“WARNING - This document contains technical data whose export is restricted by the Arms Export Control Act (Title 22, U.S.C., Sec 2751, et seq.) or the Export Administration Act of 1979, as amended (Title 50, U.S.C., App. 2401 et seq.). Violations of these export laws are subject to severe criminal penalties.”
What are the penalties for violating the export control rules with respect to transferring controlled information to a foreign national?
According to the The penalty for unlawful export of items or information controlled under the ITAR is up to 2 years imprisonment, or a fine of $100,000, or both. The penalty for unlawful export of items or information controlled under the
What laws cover export controls?
How do I know whether the technology with which a foreign national works requires an export license?
If a technology or software is on the Commerce Control List does it automatically trigger export control restrictions?
Not necessarily. First, not all technologies are barred from all countries. One should cross reference the Commerce Country Chart to see if a license in necessary. For example, for close allies like Australia and Japan, licenses are often not necessary. The regulations also list numerous license exceptions.
What if I am still not sure if I need an export license?
The Bureau of Industry and Security is required to provide an advisory opinion regarding whether an item or technology is subject to the
What should a company do if it turns out a foreign employee will trigger export control rules?
Assuming an employer chooses to hire the employee, it will need to secure an export license. The application process for obtaining an export license is outlined on the Bureau of Industry and Security web site at http://www.bis.doc.gov/licensing/applying4lic.htm.
How much time is needed to get an export license?
Expect the process to take at least 90 days for a Commerce Department license and 60 days for a State Department license.
What kinds of technology or software are excluded from the
With the exception of certain encryption technology and software, published and public availability technology and software are not covered by the
What kinds of questions should an immigration lawyer ask the employer client to determine whether export control rules may be an issue?
A lawyer should discuss what form of access a worker will have to controlled technology. Is the worker exposed to internal company research materials, does the worker participate in meetings and conference calls regarding such technology. Is the worker exposed to written communications such as emails and interoffice memoranda?
The immigration lawyer should also explore what access the worker has to the company’s server. The lawyer should discuss the possibility of limiting access to the server for employees likely to trigger export controls.
Counsel should also advise clients to list eligibility to received controlled technology as a condition of employment in order to avoid accusations of employment discrimination. Human resource personnel should also inform an applicant that information collected for export control purposes will not be used for any other purpose.
Gregory Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.