What sponsors of H-1B, H1-B1, L-1 or O-1A workers need to know about export control regulations
New United States Citizenship and Immigration Services (USCIS) regulations become effective November 23, 2010 and the use of a new petition form is mandatory as of December 22, 2010 for H-1B, H-1B1, L-1, or O-1A workers. Although the Office of International Students and Scholars (OISS) will still submit the petition on your behalf, you must first make a determination about whether there are export control compliance issues to be resolved.
USCIS has added two specific questions (see below) to the I-129 Petition for a Non-Immigrant Worker relating to compliance with federal export control regulations. The applicable regulations involve "deemed exports" that occur when a federally controlled technology, technical data, software or other item is shared with an unauthorized foreign national. If the proposed work requires a license for a specific foreign national to participate, it is necessary to request the license from the Departments of State or Commerce before the work can proceed. However, the licensing process takes time and may involve a fee, and the request can be denied. Only the Empowered Official in the Export Control Compliance Office can request a license.
Compliance with the new USCIS rule requires that the requesting department answer the questions below (Part 6 on Form I-129 Petition for a Non-Immigrant Worker). For H-1B processing questions, please contact the OISS scholar services team at OISScholars@wayne.edu or (313) 577-3422.
____ 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.
Assistance with the above Export Control questions
The Export Control checklist will assist you in determining how to answer the above I-129 Petition questions. When you have completed this, further assistance is available from the Export Control Compliance Office at (313) 577-5046 or by e-mailing firstname.lastname@example.org. The Export Control Compliance Office can conduct an online screening of the technology and foreign national once you answer the questions from the Export Control checklist.
The following are definitions of "Fundamental research":
- "Fundamental research" is defined by the Department of Commerce as basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community.
- The State Department has a similar definition, although it can be interpreted more narrowly as "fundamental research" can only describe information and technology that already is in existence and in the public domain.