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Employing Foreign Nationals

 
 
Background

The U.S. Citizenship and Immigration Services (USCIS) now requires employers to perform a “deemed export attestation.” Specifically, employers must certify that they:

  1. Have reviewed the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR")
  2. Have determined whether a license is or is not required before the foreign employee can have access to controlled products or technology. This attestation is certified on USCIS Form I-129.

Under certain circumstances, employers may need to obtain U.S. government permission, (a “deemed export” license) prior to releasing technology to a foreign national. The government may deny license requests with regard to certain types of technology. This new certification requirement makes it critically important that employers of foreign nationals, including universities, understand and comply with U.S. export control laws and regulations.

What is a Deemed Export?

A "deemed export" is the release of technology or technical data to a foreign national in the U.S. The release is deemed to be an export to the individual's home country, even though the release occurs entirely within the United States. Such releases are subject to export licensing requirements, and an unauthorized release to a foreign national within the United States constitutes an export violation. The term "release" is broadly defined and can occur through:

  • visual inspection (including via computer networks),
  • verbal exchanges,
  • the application outside the U.S. of personal knowledge, or
  • technical experience acquired in the United States.
Who is considered a “foreign national” under these rules?

A "foreign national" is anyone who is not a U.S. citizen or lawful permanent resident (i.e., aliens possessing a valid Form I-551 or "green card"), or persons granted asylee or refugee status.

Under export controls, anyone holding a temporary visa (B, E, F, H-1B, H-3, J-1, L-1, etc.) is considered a foreign national. Foreign national employees requiring the deemed export certification include faculty, visiting scholars, researchers, staff, post-doctoral candidates, technicians, foreign students seeking advanced degrees, and any foreign national conducting research at U.S. universities or their affiliates.

Is this a new requirement?

While the I-129 export control certification was implemented in early 2011, U.S. employers, including universities, have long been required to comply with the "deemed export" rule. The new Form I-129 certification requirement does not change the rule in any way.

How are deemed exports handled at FGCU?

Supervisors of successful applicants for hire at FGCU will be asked to complete the form as part of the visa processing materials for the applicant..