Post on 12-Jun-2020
Presentation Title
© 2010 Fox Rothschild
1
Applying for a Nonimmigrant Visa
What’s an Export License
Got to do With It?
Presented by:
Robert S. Whitehill, Esquire
Margaret M. Gatti, Esquire
Louis K. Rothberg, Esquire
Presentation Title
© 2010 Fox Rothschild
2
Ground Rules
Information Only
(Not Legal Advice!)
Submission of QuestionsChat
Q & A Function
Availability of SlidesUpon Request
Presentation Title
© 2010 Fox Rothschild
3
Revised I-129
Starting February 20, 2011, applicants for the
following nonimmigrant visas are required to
complete 3 export control certifications in
Part 6 of their I-129 petitions.
�H-1B
�H-1B1 Chile / Singapore
�L-1
�O-1A
Presentation Title
© 2010 Fox Rothschild
4
Part 6 of I-129 Petition
Check Box 1 or Box 2 as appropriate:
With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitionercertifies that it has reviewed the Export Administration Regulations(EAR) and the International Traffic in Arms Regulations (ITAR) andhas determined that:
� 1. A license is not required from either U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
� 2. A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.
Presentation Title
© 2010 Fox Rothschild
5
Part 6 Translation
I certify – under penalty of perjury – that:
1. I have reviewed the EAR and the ITAR with respect to the technology or technical data that I will release or disclose to the foreign national visa beneficiary.
2. In conducting my review of the EAR and ITAR, I have analyzed theextent to which my planned release or disclosure of technology or technical data to the foreign national visa beneficiary requires an EAR license from the U.S. Department of Commerce or an ITAR license from the U.S. Department of State.
3. If I conclude from my EAR and / or ITAR analysis that a license is required, I will apply for such license and prevent the foreign national visa beneficiary from accessing the controlled technology or technical data until and unless I receive the required license.
Presentation Title
© 2010 Fox Rothschild
6
Part 6 Commentary
Part 6 certifications on I-129 petitions:
1.Establish a bridge between Immigration Law and Export Control Law.
� Bridge is new � Export Control Law is long-standing.
2.Might reveal previous export control violations
� Voluntary Disclosure Process
3.Export Control violations are strict liability violations
Presentation Title
© 2010 Fox Rothschild
7
A WORK VISA IS NOT AN EXPORT LICENSE
� A valid work visa is not an export authorization.
� Employers have always needed to accurately assess the export control status of the technology and / or technical data to which their visa-holding employees will have actual or theoretical access and obtain export licenses as required.
Presentation Title
© 2010 Fox Rothschild
8
Employer as Exporter
� A lawful visa-holder worker is a foreign person for export control purposes under export regs
� An employer with a visa-holder employee in the US CAN be deemed by the US Gov to have exported export-controlled technical data or technology to such employee DURING THE ORDINARY COURSE OF EMPLOYMENT
� An employer with a visa-holder employee in the US CAN be deemed by the State Dep’t to have performed an export-controlled defense service for such employee DURING THE ORDINARY COURSE OF EMPLOYMENT
Presentation Title
© 2010 Fox Rothschild
9
Revised I-129
In order to Make a truthful and accurate
Part 6 I-129 Certifications after 2/20/2011
� Employers MUST fully understand export control license requirements, and if necessary,
� Apply for and obtain an export license in addition to obtaining the work visa
Presentation Title
© 2010 Fox Rothschild
10
Revised I-129
In order to establish that you made a well
reasoned conclusion in order to complete the
Part 6, I-129 Certification, we recommend
that you:- Implement a written decision memorandum
documenting your export control analysis and compliance for each new foreign employee; and
- Place close attention to the remainder of the Webinar!
Presentation Title
© 2010 Fox Rothschild
11
•Goods•Services•Technology / Technical Data
Foreign Person in Foreign Country
To
Export?
US Person in Foreign Country
Foreign Person in
United States
Presentation Title
© 2010 Fox Rothschild
12
Who qualifies as a “foreign
person”?
� Non-U.S. Citizen� Non-U.S. Green Card Holder � Recipient of Worker Visa (H1B, etc.)
Except when exports are “classified”
“Foreign Person” = Anyone who is not a U.S. Citizen
Presentation Title
© 2010 Fox Rothschild
13
Determining Foreign
Person’s Nationality
� Country of Residence� Country of Citizenship � Country of Birth
Export to Foreign Person = Export to Foreign Person’s Country of
Nationality
Export to Foreign Person may require an export license!
Presentation Title
© 2010 Fox Rothschild
14
Exports Can be “Actual” or “Deemed”(U.S. perspective)
Deemed Export =Domestic transaction
which U.S. law or
U.S. regulation
construes
to be export
√ Goods
√ Services
√ Technology /Technical Data
Presentation Title
© 2010 Fox Rothschild
15
Exports of Technology / Technical Data?
Actual Export:
Disclosure of
technical dataOutside the U.S.
to a Foreign Person
Deemed Export:
Disclosure of
technical data
In the U.S. to a
Foreign Person
Presentation Title
© 2010 Fox Rothschild
16
Presentation Title
© 2010 Fox Rothschild
17
Technology / Technical Data
Information required for:
�Design or Development
�Production, Manufacture or Assembly
�Operation
�Repair, Testing or Maintenance
�Modification of Products
In the form of Blueprints, Drawings, Plans, Photos, Instructions or Documentation
Presentation Title
© 2010 Fox Rothschild
18
Technology / Technical Data
Does not include:
Information that is in the Public Domain, i.e.:Information that is generally accessible to the“interested” public in any form orInformation that is available at a public library or
Information that is available through unlimited
distribution at a conference
� Published patents or
� General scientific, mathematical or engineering principles taught at universities or
� “Fundamental research” -- CAREFUL!
Presentation Title
© 2010 Fox Rothschild
19
Technical Data Exports Technical Data Exports
Occur When Occur When ……
� Hand Carrying Technical Data outside US
� Traveling with “Loaded” Lap Tops outside US
� Sending E-Mails that contain Technical Data to FP – either in the US or outside the US
� Disclosing Data to Foreign National Visitors --either in the US or outside the US
� Disclosing Technical Data to Foreign National Employees -- either in the US or outside the US
Presentation Title
© 2010 Fox Rothschild
20
Disclosing Technical Data to aDisclosing Technical Data to a
Foreign National EmployeeForeign National Employee
(in the U.S. or Abroad)
is an Export
and
May Require an Export License
If the Technical Data is controlled to the
Citizenship or Birth Country of the Foreign National Employee
Presentation Title
© 2010 Fox Rothschild
21
Procedures For Foreign National Employees
�Determine need to disclose technical data / technology
�If necessary:�Assess export control jurisdiction
�Conduct prohibited country screenings
�Conduct prohibited & restricted party screenings
�Apply for export license, if required
�Assign escort until license received
�Restrict computer access
�Obtain signed Technical Data Access Agreement
Presentation Title
© 2010 Fox Rothschild
22
What does Export Control Jurisdiction
Mean?
Determining
Which
US Laws & US Regulations
Apply to US Exports of
Goods, Services and
Technical Data / Technology
Presentation Title
© 2010 Fox Rothschild
23
Export Control Jurisdiction
All U.S. Exports
TWEA Cuba Sanctions
IEEPA Iran & Sudan Sanctions
Defense Article Exports
AECA ITAR
Exports of Dual Use Items
EAA EAR
Presentation Title
© 2010 Fox Rothschild
24
Procedures for Jurisdiction
Determination
Presentation Title
© 2010 Fox Rothschild
25
ProceduresAnalyze End Use Information to
Determine Export Jurisdiction
Military or Space
�Defense Article
�AECA / ITAR
�DOS / DDTC
�CJR?
Other
�Dual Use Article
�EAA / EAR
�DOC / BIS
Presentation Title
© 2010 Fox Rothschild
26
AECA / ITAR Jurisdiction
Administering Agency
DDTCDirectorate of Defense Trade Controls
State Department
Munitions Item (a.k.a Defense Article)
Military or Space?
Presentation Title
© 2010 Fox Rothschild
27
DDTC / ITAR Jurisdiction
��Defense Articles / Defense Articles /
Munitions ItemsMunitions Items
��Services relevant to Services relevant to
or involving Defense or involving Defense
Articles Articles
��Technical Data for Technical Data for
Defense ArticlesDefense Articles
Presentation Title
© 2010 Fox Rothschild
28
DDTC / ITAR What is a defense service
� Defense Service means furnishing assistance, including training to foreign persons in the US or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing or use of a defense article.
Presentation Title
© 2010 Fox Rothschild
29
DDTC / ITAR What is tech data?
� Technical Data means information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of a defense article.
� Technical Data does NOT include by definition that which is in the Public Domainas specifically defined by ITAR 120.11
Presentation Title
© 2010 Fox Rothschild
30
WhatWhat is a Defense is a Defense
Article?Article?
1.1. Munitions List Munitions List
ItemItem
(ITAR 121.1)(ITAR 121.1)
�� CategoriesCategories
�� FormatFormat
Presentation Title
© 2010 Fox Rothschild
31
WhatWhat is a Defense is a Defense
Article?Article?
2.2. ItemItem Specially Designed for for
Military or Space Military or Space
ApplicationApplication
Presentation Title
© 2010 Fox Rothschild
32
WhatWhat is a is a
Defense Article?Defense Article?
3. Item Specially Modified or Specially Adapted for Military or Space
Application
Significance of Modification /
Adaptation is NOT
a Consideration!
Presentation Title
© 2010 Fox Rothschild
33
WhatWhat is a Defense is a Defense
Article?Article?
4. Significant Military
Equipment (SME)
or “inherently
military”
Presentation Title
© 2010 Fox Rothschild
34
WhatWhat is a Defense is a Defense
Article?Article?
5. Dual Use Item that
imbeds defense
article
(See Through Rule)
Presentation Title
© 2010 Fox Rothschild
35
Sometimes
But Not Always
Obvious
What is aDefense Article?
Presentation Title
© 2010 Fox Rothschild
36
Obvious !
What is a Defense Article?
Presentation Title
© 2010 Fox Rothschild
37
Not Obvious !
What is a Defense Article?
Presentation Title
© 2010 Fox Rothschild
38
Obvious !
What is a Defense Article?
Presentation Title
© 2010 Fox Rothschild
39
Not Obvious !
What is a Defense Article?
Presentation Title
© 2010 Fox Rothschild
40
Munitions Items
Obvious Military Items
Fighter Jets
Non-Obvious Items
Parts of Fighter Jets
Parts of Parts of Fighter Jets
Imbedded Items
Included in Otherwise Commercial Items
(Poisonous Tree / See Through Rule)
U.S. Export Controls
DDTC Jurisdiction
Presentation Title
© 2010 Fox Rothschild
41
Determining “Munitions Item” status:
1. Review Munitions List
See ITAR Part 121
2. Designed for a military or space application?
De-Controlled under CJ?
Munitions Item?
Presentation Title
© 2010 Fox Rothschild
42
Determining “Munitions Item” status:
3. Specially modified for a military or space application?
Significance not relevant!
Part by Part determination
Munitions Item?
Presentation Title
© 2010 Fox Rothschild
43
Determining “Munitions Item” status:
4. “Inherently” military, i.e. has significant military or intelligence applications?
Quartz Rate Sensor Chip
(QSR-11 Chip)
Commercial Satellites
Munitions Item?
Presentation Title
© 2010 Fox Rothschild
44
Determining “Munitions Item” status:
5. See Through Rule?
Commercial item imbeds Munitions Item?
QSR-11 Chip
Boeing, Goodrich & L-3
Munitions Item?
Presentation Title
© 2010 Fox Rothschild
45
Reality versus potential“Could be” doesn’t matter / count
Military end user is NOT determinative!
Individual item versus product family
USML Category VIII?
ECCN 9A991?
OR
Key Considerations for USML:
Presentation Title
© 2010 Fox Rothschild
46
U.S. Export Controls Jurisdiction of DDTC
Munitions ItemsCounterpoint:Counterpoint:
Dual Use ItemsDual Use Items
Uncertain?
File Commodity Jurisdiction File Commodity Jurisdiction Request (CJR) Request (CJR) with DDTCwith DDTC
Do NOT File BIS Classification
Request Treat as USML from filing!
Presentation Title
© 2010 Fox Rothschild
47
U.S. Export Controls U.S. Export Controls
Jurisdiction of DDTCJurisdiction of DDTC
Commodity Jurisdiction Request
� Assign DDTC Control� Remove DDTC control
High level of scrutiny High level of scrutiny
High burden of proofHigh burden of proof
� Binding & Authoritative � Supercedes BIS Classification� Recent 7th Circuit Decision!
Presentation Title
© 2010 Fox Rothschild
48
ProceduresAnalyze End Use Information to
Determine Export Jurisdiction
Military or Space
�Defense Article
�AECA / ITAR
�DOS / DDTC
�CJR?
Other
�Dual Use Article
�EAA / EAR
�DOC / BIS
Presentation Title
© 2010 Fox Rothschild
49
EAA / EAR Jurisdiction
Administering Agency
BISBureau of Industry & Security
Commerce Department
Dual Use Items
Military or Space?
Presentation Title
© 2010 Fox Rothschild
50
U.S. Export Controls
Jurisdiction of BIS
Dual Use Items�Exclusive Civil \ Commercial
Application
�Civil \ Commercial as well as Military Application
Fully Interchangeable!
Presentation Title
© 2010 Fox Rothschild
51
Dual Use Items
Commerce Control List Product Specific ECCN
EAR99
Classification Request
U.S. Export ControlsJurisdiction of BIS
Presentation Title
© 2010 Fox Rothschild
52
Top Ten Categories Requiring EAR Licenses
� Materials processing [motion simulators, chemical manufacturing equipment, detection devices
� Materials, Chemicals, Micro-organisms, Toxins
� Nuclear related
� Electronics
� Telecommunications & Information Security
Presentation Title
© 2010 Fox Rothschild
53
Top Ten Categories Requiring EAR Licenses
� Propulsion
� Sensors and lasers
� Navigation and Avionics
� Computers, related software and technology
� Marine
Presentation Title
© 2010 Fox Rothschild
54
TECHNOLOGY PUBLICLY AVAILABLE
� EAR does not control technology that is publicly available as defined in EAR 734.3(b)(3)
� The ITAR definition of public domain and the EAR definition of publicly available are not the same
Presentation Title
© 2010 Fox Rothschild
55
U.S. Export Controls
Jurisdiction of BIS
Dual Use ItemsDetermination via:
Commodity Jurisdiction
ORInformed Analysis
(Standard of Strict Liability)
Presentation Title
© 2010 Fox Rothschild
56
Why is Determining
Export Control Jurisdiction Important?
AECA / ITAR versus EAA / EAR
1. Different Administering Agencies
2. Different Prohibitions
3. Different Restrictions (License Requirements)
4. Different Licensing Analysis, e.g. nationality by naturalization [EAR] or by birth [ITAR]
Presentation Title
© 2010 Fox Rothschild
57
Why is the Determination of Export
Control Jurisdiction Important?
Administering Agencies
AECA / ITAR
State Department’s
Directorate of Defense Trade Controls
(DDTC)
EAA / EAR
Commerce Department’s
Bureau of Industry & Security
(BIS)
Presentation Title
© 2010 Fox Rothschild
58
Why is the Determination of Export
Control Jurisdiction Important?
Prohibited Countries
AECA / ITAR
�25 prohibited countries
�See Embargoed CountryChart on DDTC website
EAA / EAR
�5 prohibited countries
�See EAR Embargoed Countries
Presentation Title
© 2010 Fox Rothschild
59
Why is the Determination of Export
Control Jurisdiction Important?
Prohibited Buyers / End Users
AECA / ITAR
�Debarred Parties�Denied Parties�SDN’s
�Proliferators
EAA / EAR
�Denied Parties�SDN’s�Proliferators
Presentation Title
© 2010 Fox Rothschild
60
Why is the Determination of Export
Control Jurisdiction Important?
Product Restrictions
AECA / ITAR
Product-Specific Licenses
Always Required unless
ITAR License Exemption Available.
EAA / EAR
Product-Specific Licenses Required Sometimes�ECCN�Reason for Control�Country Chart�Exception?
Presentation Title
© 2010 Fox Rothschild
61
Why is the Determination of Export
Control Jurisdiction Important?
End User Restrictions
AECA / ITAR
Already licensable based on Product-Specific
Reasons .
EAA / EAR
End Users can Sometimes result in license requirement�Unverified End User�Entity List�Proliferator List
Presentation Title
© 2010 Fox Rothschild
62
SCREENING EMPLOYEE
� Must screen each visa-holder employee to insure that s/he is NOT on any US Government list prohibiting or restricting exports to him or her.
� Work visa approval does NOT mean the PARTICULAR employee is cleared to receive any export-controlled technology
Presentation Title
© 2010 Fox Rothschild
63
Why is the Determination of Export
Control Jurisdiction Important?
End Use Restrictions
AECA / ITAR
Already licensable based on Product-Specific
Reasons .
EAA / EAR
End Uses can Sometimes result in license requirement�CBP�MT�NP
Presentation Title
© 2010 Fox Rothschild
64
Why is the Determination of Export
Control Jurisdiction Important?
Different Analysis
AECA / ITAR EAA / EAR
Presentation Title
© 2010 Fox Rothschild
65
Export License Analysis
Jurisdiction?
OFACOFACAECA / ITAR AECA / ITAR
ProhibitionsCountry?
End User?
RestrictionsLicense Required
EAA / EAREAA / EAR
ProhibitionsCountry?
End User?
RestrictionsProduct?
End User?End Use?Red Flag?
License Required? No License Required?
Presentation Title
© 2010 Fox Rothschild
66
ITAR and EAR Apply a standard of
“Strict Liability” in assessing
ITAR and EAR Violations!
There is No Margin For Error!
Negligent versus Criminal
Importance of Proper Export Control Jurisdiction Determination
Presentation Title
© 2010 Fox Rothschild
67
PUNISHMENT FOR VIOLATIONS
� EAR civil violations can lead to a civil monetary penalty of $250,000 per violation
� ITAR civil violations can lead to a civil monetary penalty of $500,000 per violation
Presentation Title
© 2010 Fox Rothschild
68
PUNISHMENT FOR VIOLATIONS
� There are other possible civil penalties as well as criminal fines and prison sentences. These punishments are far more severe for an employer, than employer punishments for work visa violations
� Recent Criminal Case - Professor at Univ. of Tennessee received 4 years in prison for unlicensed export of tech data to students
Presentation Title
© 2010 Fox Rothschild
69
Presentation Title
© 2010 Fox Rothschild
70
Robert Whitehill
Immigration Law Group
Fox Rothschild LLP
www.foxrothschild.com
Pittsburgh, PA
Direct Dial: 412.394.5595
Presentation Title
© 2010 Fox Rothschild
71
Margaret Gatti
Louis Rothberg
Mark Sullivan
International Law Group
Fox Rothschild LLP
www.foxrothschild.com
Philadelphia, PADirect Dial: 215.299.2449
Washington, DCDirect Dial: 202.618.7022