Export Control Clearance
Process for Visa Holders
Portions of this presentation were provided by:
Steven Brotherton, Partner
Fragomen, Del Rey, Bernsen & Loewy, LLP
New Export Control
Certification Form I-129, Part 6
Export Control Certification:
“The BIG ONE”
 Various visa types subject to new certification requirement
 H-1B, H-1B1
 L-1 (except Blanket Ls)
 O-1A
 Not a new legal requirement
 Affirmative review and certification required
 In most cases an export license is not required:
Who is a Foreign National?
 Any Person who is not:
 A U.S. Citizen;
 A U.S. Lawful Permanent Resident;
 A Person Granted Asylum;
 A Refugee;
 A Temporary Resident granted amnesty.
 Foreign National includes persons with status such as H-1B, H-3, L-1, J-1,
F-1 Practical Training, L-1, etc.
Tip: Though the deemed export requirements apply more broadly, the I129 export control certification is only required for H, L and O petitions.
What is a Deemed
 A release or transfer of technology, technical data or knowhow to a Foreign National in the U.S.
 Physical export out of U.S. is NOT required
 Transfer takes place in the U.S.
 “Release” could occur by providing access to data stored
on shared network drives
 “Deemed” to be an export to the Foreign National’s “Home
Country”
 May require a U.S. government export license
Government Accounting Office (GAO)
Report
 Recommendation:
“We recommend that the Secretary of Commerce
work with INS to use all existing U.S. government
data in its efforts to identify all foreign nationals
potentially subject to deemed export licensing
requirements.”
The Certification – A Closer Look
EAR
ITAR

“Dual Use”/Commercial
 Military/Space

Controlled items appear on
Commerce Control List

Very few exceptions
available; license typically required

ITAR controlled items:

Specifically

designed

modified

adapted

configured
 A number of exceptions
available
Examples of EAR Controlled Items:

semiconductors

telecommunications

high speed computers

manufacturing equipment

encryption

many others
 …for military/space application
How can a “Deemed Export” Occur?
 Providing drawings to a Foreign
National employee
 Technical training
 Technical conversations/
collaboration with Foreign
Nationals
 Working with Foreign National
interns or consultants
 Telephone conversations
 Collaborations w/ U.S.
customers’ Foreign National
employees
 Access to database that contains
controlled technology
THE KEY QUESTION

Do you work with “Controlled Technology?”
 If so, what Home Countries require an export license?
 Until an export license is obtained, do not release Controlled
Technology to a foreign national that requires an export license

Involves Review of EAR and ITAR
 EAR: Commerce Control List, countries controlled at various
levels depending on nature of technology
 ITAR: U.S. Munitions List, a license is required prior to release
of ITAR technical data to any foreign national
Typical “home countries” with Export
Control Issues under EAR
Highest
Controls
• “Terrorist Supporting States”
 Cuba, Iran, North Korea, Sudan, Syria
• “Countries of Concern”
 Former Soviet Republics (Russia, Ukraine), China, Vietnam,
others
Lowest
Controls
• “Friendly Countries”
 All others (EU Member States, Canada, Mexico, etc.)
Deemed Export Implications
 “Deemed Export” license may be required prior to
transfer of controlled technology
 License approval takes time (2 - 4+ months) and
denial is possible
 Significant civil and criminal penalties
 Civil penalties up to $500,000 per violation
 Criminal penalties up to $1,000,000 per violation and 20
years in prison
 Denial of export privileges
 Debarment from U.S. government contracts
Publicly Available/Public Domain
Information
 Published Information
 Open Conference/Meeting
 Educational Information
 Patents
 Fundamental Research
Fundamental Research
EAR §734.8
 “Basic and applied research in science and engineering,
where the resulting information is ordinarily published and
shared broadly within the scientific community. Such
research can be distinguished from proprietary research
and from industrial development, design, production, and
product utilization, the results of which ordinarily are
restricted for proprietary reasons . . .”
University Fundamental Research
EAR §734.8
•Must be conducted at accredited institutions of higher
learning in U.S.
•University based research is not considered
“fundamental research” if the university or its
researchers accept (at the request, for example, of an
industrial sponsor) restrictions on publication of
scientific and technical information resulting from the
project or activity.
•Exemption does not apply to the “use” of controlled
equipment.
Requirements for Faculty Hires
The following units and departments will continue preparing the Export Control
Questionnaire (http://academic.fiu.edu/academicbudget/www/FinalForms/I129_Visa_Export_Compliance_Questionnaire.docx):
College of Engineering and Computing, including the School of Computing and
Information Sciences
The following three College of Public Health and Social Work Departments:
 Environmental and Occupational Health
 Epidemiology
 Biostatistics
The following three College of Arts and Sciences Departments:
 Physics
 Biology
 Chemistry
Requirements for Faculty Hires
• All other colleges and departments will be required to send
to Academic Affairs the following information via e-mail:
Full name
Country of Birth
Country of Citizenship and Nationality
Relationship of Foreign National to FIU (i.e. POI,
Research Associate, Instructor, etc.)
 Once this information is received in Academic Affairs, the
visual compliance search and clearance process will take
place.
The Process
The process is as follows:
1. As soon as a visa application is started, the
appropriate HR Liaison sends the blank Questionnaire to
the sponsoring person to fill out.
2. Said person fills out and sends it back to the liaison.
3. The liaison sends the Questionnaire for Virtual
Compliance (if academic affairs it is sent to Priscilla
Williams, with copy to Rosa Saez, otherwise it is sent
to Claudia Molina).
The Process (cont.)
4. Once the Virtual Compliance is completed, the results and
the Questionnaire are sent to Isis Carbajal de Garcia, Office of
the General Counsel.
5. Both documents are reviewed; additional information might
be required or changes to the form might be needed.
6. The final determination is sent via e-mail to the person
processing the visa (Fragomen or ISSS, with copy to the HR
Liaison, visa sponsor and AA).
Sending Questionnaire
 To send questionnaire the “Subject” line is to read:
 College/Department ECQ for (last name, first name), (J-1
or H-1), Position [faculty, staff, POI], Country of origin.
Centralized Export Controls Compliance Program
[Export Control Administrator / Liaisons]
Operational
 Sponsored Research
 Tech Transfer
 IT
 Human Resources
 Property Management
 Procurement
 Finance
 Legal
 International Student
Services
 Environmental Health &
Safety
 Shipping/Receiving
Academic
 Teaching-in
U.S.
 Teachingabroad
 Online
curriculum
 Conferences
Research
 Research (Sponsored or
faculty-initiated)
o FRE
- FRE-covered
projects
- Controlled
instruments
- Proprietary Data
o Non-FRE
- Restricted projects
 International
Collaborations
 Outside Activity
Business
 Work for
Others/Service
Contracts
 Landlord/Tenant
relationships
 Outside Activity
 Spinoffs
 Tech Transfer
Contact Information


Isis Carbajal de Garcia

Nelson Perez
Deputy General Counsel
Assistant Compliance Officer
Email: isisc@fiu.edu
Email: Nelson.Perez1@fiu.edu
Office: 305-348-6045
Office: 305-348-4726
Rosa Saez
Director, Academic Support Services
Email: Rosa.Saez@fiu.edu
Office: 305-348-2168