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Nonimmigrant Workers, Export Controls, and Export Licenses FAQs

What is an Export Control?

Export controls are restrictions on the export of certain sensitive technologies to other countries. Not surprisingly, the level of restriction depends on the country to which the technology will be exported. Controls on exports of technology to Iran, for example, are much more restrictive than exports to Canada.

What are the EAR and the ITAR?

The EAR (Export Administration Regulations) and the ITAR (International Traffic in Arms Regulations) are regulations which determine which technologies are subject to Export Controls.

The EAR regulates exports of so-called “dual use” technologies, which have both commercial and military or proliferation applications. Examples of technologies subject to EAR export restrictions include: supercomputers, and semiconductors capable of operating at high temperatures. The EAR export controls are administered by the Department of Commerce’s Bureau of Industry and Security (BIS). The EAR regulations, and detailed instructions on navigating these regulations may be found online at: http://www.access.gpo.gov/bis/ear/ear_data.html#ccl.

The ITAR regulations apply to exports of military and defense related equipment. The ITAR is administered by the Department of State’s Directorate of Defense Trade Controls. The ITAR can be found online at: http://www.pmddtc.state.gov/regulations_laws/itar.html.

Note that some countries may be subject to additional export controls, such as embargos, which are not included in the EAR or ITAR.

What is an Export License?

An Export License is a “license” to export a controlled technology to a specific foreign person or entity. Export licenses can be issued by the BIS, in the case of EAR export controls, or the Department of State, in the case of ITAR export controls.

How do Export Controls and Export Licenses Apply to Immigration?

Pursuant to the “deemed export” rule, allowing a foreign national in nonimmigrant (temporary) status to have access to controlled technologies will be deemed to be an export of this technology to the person’s country of citizenship, or residence. Accordingly, before hiring a nonimmigrant worker, the employer must ensure that all export license requirements, if any, are met.

What are Employers Required to do with Respect to Export Controls When Filing Nonimmigrant Petitions?

As of February 20, 2011, a new version of the I-129 Nonimmigrant Petition form requires that the person filing a petition for H-1B, H-1B1, L-1 and O-1 classification “certify” that the employer has reviewed the EAR and ITAR and determined that either: The employer is not required to obtain an export license for the beneficiary of the petition; or If the employer is required to get an export license, it will not allow the beneficiary to have access to controlled technology until a license is obtained.

Note that all the information provided by the person signing the I-129 petition form, including this certification, is made “under penalty of perjury.”

Do the Export License Requirements apply only to H-1B, L-1, O-1 and H-1B1 workers?

No. Although the certification requirement on form I-129 applies only to H-1B, L-1, O-1 and H-1B1 workers, employers must ensure that export license requirements are met for all other nonimmigrant workers including those in F-1 Optional Practical Training, J-1, TN, E-1, E-2, E-3, etc.

Do the Export License Requirements Apply to Permanent Residents?

No. Export Licenses are not required for persons who are permanent residents. The requirements also do not apply to a person granted asylum, or who has filed an asylum application.

How do I Know if a Nonimmigrant Worker Requires an Export License?

Determining whether a particular nonimmigrant employee requires an export license under the EAR requires determining whether the technology that the foreign worker will have access to appears in the Commerce Control List and then cross-referencing this with the Commerce Country Chart. Because the ITAR only involves technologies with obvious military applications, determining whether a particular worker is subject to controls under this regulation should be straight forward for most employers. Although workers from most countries will not require a license, the petitioning employer must be sure that this is the case before signing the I-129 petition form. We recommend that you consult with the person who normally handles export control matters for your company, or contact our office if you have any doubt as to whether a particular employee needs an export license. We will be happy to refer you to an expert in this area.

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