Controlling the export of technology. Foreign students and scholars in the United States need certification

> Controlling the export of technology. Foreign students and scholars in the United States need certification. The United States Citizenship and Immigration Services (USCIS) has recently revised certain job application regulations for employers to hire foreign workers...

The United States Citizenship and Immigration Services (USCIS) has recently revised certain job application regulations for employers to hire foreign workers. One of the modifications is a certification requirement in addition to Form I – 129. The purpose of this certification is to prevent the unauthorized release of sensitive technology, technical data and software to foreign citizens, so as to avoid adverse effects on national security and foreign policy. This move adds an additional security check procedure for foreign students and scholars holding H, L and O categories in the United States, which all universities, research institutions, companies, etc. must comply with. Last December, USCIS required employers applying for H, L, and O nonimmigrant work visas for foreign employees to certify that the employees have access to sensitive technical information, effective February 10, 2011. Under the Export Administration Regulations and the International Traffic in Arms Regulations, employers hiring foreign workers have to deal with complex certification procedures. Under the Export Administration Regulations, allowing a foreign citizen to have access to sensitive technology or technical data in the United States is considered an export of such goods to the foreign citizen's home country, which requires a license. Similarly, the International Traffic in Arms Regulations also has provisions in the arms list regarding the need for licenses for the export of controlled defense articles or technical data. The new additional certification requires a company to show that it has read the Export Administration Regulations and the International Traffic in Arms Regulations and determined that (i) the foreign worker does not need to be issued a license to export technology or technical data, or (ii) a license is required. But the company will prevent the foreign national from accessing the information until permission is obtained. The consequences of failure to comply with export laws can be severe, including civil fines of up to $500,000 per case, criminal fines of up to $1 million and up to 10 years in prison, denial of export licenses and denial of government contracts, among other penalties. For certification equivalent to an export license, the average application time for a license is approximately 40 days, based on the completeness of the job application form, background check and previous record of the foreign worker. If it exceeds 40 days, you can call the Ministry of Commerce hotline to inquire.

Export Requirements Analysis and decision whether certification is required is complex and cumbersome. It begins with determining the type of technology or technical data that foreign citizens will be exposed to. This requires consultation with company officials who understand the design and use of the product, as well as information technology personnel familiar with software applications. Second, the company must decide how the technology or technical data will be exported. The first consideration is whether the product is on the U.S. Department of Commerce’s Control List issued by the U.S. Department of Commerce’s Bureau of Industry and Security. The technical characteristics and product functions of the product determine whether the product belongs to one of the 10 categories of controlled products (for example, information security is one of the categories), and whether the product has an Export Control Classification Number (Export Control Classification Number), which describes the technical characteristics of the controlled product and any related export restrictions. If a product is on the list of controlled products, the company must consider the nationality of the foreign worker. This information can be obtained from the Ministry of Commerce to determine whether a license is required to export the product. Products on the arms technology list of the International Traffic in Arms Regulations promulgated by the U.S. Department of State’s Defense Trade Administration are designated as controlled munitions items and require a license.

Considerations While most technologies are not export-controlled products, companies should conduct an analysis to confirm that the foreign national does not require a license. The situation of foreign employees, foreign students and academics involved in research and development work that involves exposure to technology, data or software should be carefully scrutinized. Technologies that require technology transfer licenses to foreign countries are often dual-use technologies and involve key areas of control, such as national security, nuclear proliferation, missile technology, chemical and biological warfare. "Public" technology is not subject to the Export Administration Regulations and the International Traffic in Arms Regulations. These include technology and software that have been published or will be published, except for encrypted software and product control technology. If you have questions, you can visit the U.S. Department of Commerce website at www.bis.doc.gov, which provides step-by-step instructions for applying for a license or product classification. In addition, the U.S. Department of Commerce's Bureau of Industry and Security provides export management advisory guidance. Contact number: 202-482-4811 or 949-660-0144.