Employing Foreign Nationals (non-immigrant worker visa applicants)

Background:  The U.S. Citizenship and Immigration Services (USCIS) now requires employers to perform a “deemed export attestation.”  Specifically, employers will now have to certify that they (1) have reviewed the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR") and (2) have determined whether a license is or is not required before the foreign employee can have access to controlled products or technology.

Under certain circumstances, employers may need to obtain a ”deemed export” license for J-1, H-1B, H-1B1, L-1, O-1 non-immigrant worker visa applicants for the release of export controlled technology or technical data that may occur within the U.S. during their employment. 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 understand and comply with U.S. export control laws and regulations, including the deemed export rule. This attestation is certified on USCIS Form I-129.

What is a Deemed Export?  The release of technology or technical data to a foreign national in the U.S. is deemed to be an export to the individual’s home country, even though the release occurs entirely within the United States.  This concept is referred to as a “deemed export.”   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, or 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 asylum or refugee status. At Buffalo State, anyone holding a temporary visa (B, E, F, H-1B, H-3, J-1, L-1, etc.) is treated as a foreign national for export control purposes.   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?  U.S. employers and organization 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 Buffalo State?  Foreign nationals hired at Buffalo State will be asked to complete an Export Compliance Form as part of the application and on-boarding process.  Completed forms that indicate potential export control issues will be reviewed by David Alessi, Employee Compensation Manager, to determine applicability of export controls and whether or not an export license is required.