Export Control Overview

An export is any oral, written, electronic or visual disclosure, shipment, transfer or transmission of commodities, technology, information, technical data, assistance or software codes to:

• anyone outside the U.S. including a U.S. citizen
• a "foreign national" - wherever they are (deemed export)
• a foreign embassy or affiliate

A "Foreign National" is any person who is NOT a:

• U.S. Citizen or National
• U.S. Lawful Permanent Resident
• Person Granted Asylum
• Person Granted Refugee Status
• Temporary Resident

"Foreign Nationals" include:

• Persons in the U.S. in non-immigrant status (H-1B, H-3, L-1, J-1, F-1 Practical Training, L-1)
• Persons unlawfully in the U.S.

Exports may be controlled due to any of the following factors:

• National Security
• Proliferation of chemical and biological weapons
• Nuclear Nonproliferation
• Missile Technology
• Anti-Terrorism (Cuba, Iran, North Korea, Libya, Sudan, and Syria)
• Crime Control
• Regional Stability
• U.N. Sanctions

Exports can be disclosed via the following actions:

• Fax
• Telephone discussions
• E-mail communications
• Computer data
• Face-to-face discussions
• Training sessions
• Tours which involve visual inspections

The following U.S. government agencies determine the policies regarding export control:

• Export Administration Regulations (EAR) - The Department of Commerce
• International Traffic in Arms Regulations (ITAR) - The Department of State
• Office of Foreign Asset Control (OFAC) - The Treasury Department

 

The FBI has produced a good source for faculty members who travel to conferences in countries outside the US.  It includes specific information regarding how to protect the information in your phone and computer and advises the traveler that in some countries their movements may be monitored.

The Export Administration Regulations (EAR) define a deemed export as the release of technology or source code subject to the EAR to a foreign national in the United States.  Any such release is "deemed" to be an export to the home country of the foreign national.  Situations that can involve the release of U.S technology or software include:

• Employees that are foreign nationals involved in specific research, development, and manufacturing activities
• Foreign students or scholars conducting research
• Laboratory tours
• Face-to-face
• Telephone
• E-mail
• Fax
• Sharing of computer files
• Visual inspections              

This is the PRIMARY export control issue facing university research.  

Who it Affects
Foreign Nationals are subject to deemed export requirements unless:

• Granted U.S. citizenship;
• Granted permanent residence status (i.e., "Green Card" holders);  or
• Granted status as a "protected individual."  Protected individuals include political refugees and political asylum holders.
  As a general rule, the last citizenship obtained by the foreign national governs.  Example: Dual Citizenship - Foreign National that becomes a citizen of the United Kingdom, but maintains his/her birth country citizenship.

Why it is Important
According to recent reports, the Commerce Department has begun to monitor applications for employment based visas, and particularly H visas, more closely.

The Department's Bureau of Industry and Security has conducted sporadic spot checks of foreign nationals who have been granted H visas to work in sensitive industries, including interviews with their employers.

The FBI also has become increasingly concerned with the relationship between foreign workers and the release of technology deemed to be an export under the EAR and ITAR.  As part of their investigative activities, FBI agents have visited universities in order to learn more about projects on which particular foreign nationals have been working, and to ascertain whether or not they are licensed.