Export Controls and I-129 Deemed Export Attestation

U.S. Citizenship and Immigration Services (USCIS) require employers sponsoring foreign nationals to conduct an export control assessment and confirmation through the I-129 Petition for a Non-Immigrant Worker process. Specifically, the I-129 form contains Part 6, Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.

Foreign National Any person whom is 1) Not a U.S. Citizen, 2) Not a U.S. Permanent Resident (i.e. a green card holder), or 3) Not an individual offered Protected Status under 8 U.S.C. 1324b(a)(3) is considered a foreign national for the purposes of exports controls regulations. Also, employees of foreign entities (including U.S. persons) are treated as foreign nationals no matter where located.

Individuals on a visa (including foreign visiting faculty) are considered foreign nationals. For additional guidance on bringing international visitors to Fordham, please see the Office of International Services website.

Deemed export A deemed export refers to the release or transmission of information or technology to any foreign national in the U.S., including students, post-docs, faculty, visiting scientists, or training fellows. A deemed export is treated as an export to that person’s home country.

Explanation of H-1B Deemed Export Attestation

Fordham is required to submit an H-1B petition (Form I-129) with other required documentation to U.S. Citizenship and Immigration Services (USCIS) in order to (a) obtain an H-1B temporary worker classification for a foreign national coming from outside the U.S., (b) obtain a change of status within the U.S. for an individual under another nonimmigrant category, or (c) extend the H-1B authorization of a current H-1B employee.

Form I-129 includes an attestation that introduces "export controls" into the visa petition process. The attestation requires that the employer determines: (1) if an H-1B employee's job involves access to technology or technical data, (2) If this information is subject to specific export regulations, and (3) if the information will be "released" to the employee and therefore require the employer to obtain an export license from the appropriate federal agency.

The U.S. export control system seeks to protect national security and maintain economic competitiveness in the U.S. through two sets of regulations:

The Export Administration Regulations (EAR) are administered by the U.S. Department of Commerce and deal with the export of "dual use" (commercial and military) articles, software and technology.

The International Traffic in Arms Regulations (ITAR) are administered by the U.S. Department of State and regulate the export of defense articles and technology.

Based on the way "export" is defined by these regulations, the release (visual inspection, oral exchange of information, etc.) of technology or technical data to a foreign national can constitute a "deemed export," just as if a physical shipment had been made to the foreign national's home country.

Employers filing H-1B petitions on behalf of foreign nationals must certify under penalty of perjury that they have reviewed both the ERA and the ITAR, and based on that review have determined that:

• A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
• 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.

It is important to understand that there are broad exemptions from the EAR and the ITAR, many of which are applicable to higher education. For example, publicly available technology, educational information, and fundamental research (defined as "basic and applied research in science and engineering.") are not subject to the regulations. We feel that the majority, if not all of the research conducted at Fordham will fall under the fundamental research category and be exempted from the regulations.

Export Review Control Review 

The Office of Research Compliance is drafting a questionnaire to assist in determining if a license may be required. The purpose of the questionnaire is to facilitate and document the export control review and certification procedure.