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Release of Technology and Technical Data to Certain Nonimmigrant Employees: The Intersection of U.S. Immigration and Export Laws

Posted on Monday, January 9, 2012

The renowned journal Science was recently asked to withhold publication of certain results – information that might enable readers to engineer a virulent form of bird flu -- for national security reasons. With the February 2011 advent of Form I-129 Part 6, the Immigration Service’s Petition for a Nonimmigrant Worker, a similar request is being made of all organizations employing aliens on certain nonimmigrant visas. This applies both to academic and research institutions and to private sector employers. 

chicago immigration attorney lawyer scientist academic eb-1a national interest waiver research phdBehind this change are a set of regulations referred to as the “deemed export rules”. Under these rules, releasing controlled technology or technical data to certain nonimmigrants is deemed to be an export to that person’s country or countries of nationality. 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 knowledgeable persons. Indeed, transfer of certain information or knowledge to a nonimmigrant colleague or staff member, even in the course of laboratory research, is termed a “deemed export” because the recipient -- in principle -- represents a foreign country while working here.

Form I-129 Part 6 is an attestation that the employer will obtain a license, if one is required, prior to releasing certain technologies and types of information to H-1B1, H-1B, L-1 or O-1A workers. The Commerce Department and Department of State provide most of the guidelines on when a license is needed, but a number of other U.S. agencies and departments are also involved. There are many specialized rules that must be strictly adhered to as well as export embargoes against certain countries and organizations.

chicago immigration attorney lawyer scientist academic eb-1a national interest waiver research phd Since the potential criminal and civil penalties for both the employer and the individual signing the I-129 are significant (over 20 years in prison and up to $1 million per violation), it is highly advisable for employers to have an export compliance program in place.

The need for an export license in a given situation depends not only on what the “export” is but also where (or to whom) it is being exported. Thus, one may need a license to allow any employee in one of the specified nonimmigrant classes to work on a certain Department of Defense project, or to allow a native of Venezuela – but not of Canada -- to work on a particular telecommunications project. Or, one may need an export license to release a laser of a certain wavelength to a foreign national, but not a laser of a shorter or longer wavelength.

Fortunately, there are a number of exceptions to the deemed export regulations that serve to limit the situations in which licenses are required. Under the “public domain” exception, export controls do not apply to information and some forms of software publicly accessible in such media as books, free web sites, or open conferences. The “fundamental research” exception pertains to basic and applied research published and shared broadly in the science community – unless the researcher has accepted restrictions on publication or dissemination of the data or the work is funded by the U.S. government and access/dissemination is restricted. Finally, under the “educational information exclusion” instructional content of commonly taught lecture and lab courses is not subject to export control. However, all such courses must be listed in the universities’ catalogues.

chicago immigration attorney lawyer scientist academic eb-1a national interest waiver research phd

Thanks to these exceptions, many organizations applying for nonimmigrant visas for temporary staff may be able to specify on the I-129 Part 6 that “[A] license is not required either from the U.S. Department of Commerce or the U.S. Department of State.” However, that determination can only be made by someone with up-to-date expertise on the deemed export regulations. Many universities and research organizations, as well as technology giants such as Cisco Systems, have an Office of Export Control dedicated to maintaining compliance with all of the applicable rules. Many smaller technology companies employing aliens on nonimmigrant visas hire expert consultants to ensure that they do not expose themselves to penalties.

In 2010, 700 deemed export licenses were granted. 60% of the foreign nationals involved were citizens of China, while 13% held Indian citizenship. If it is determined that a license is needed in order to include a specific foreign national on a project or team, the employer may file the Form I-129 Part 6 and even hire the individual before obtaining the necessary license. However, communication with the affected H-1B1, H-1B, L-1 or O-1A employee must be restricted until the license is granted.

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