May
11
Export License Required
Posted by Clif Burns at 6:52 pm on May 11, 2011
Category: Deemed Exports
I think all the publicity of the new part of the I-129 non-immigrant visa application which asks companies to certify as to whether the company will be transferring export-controlled technology to the foreign employee is causing some confusion. I saw today a job listing for a gas turbine engineer that said this:
This position may require an export license from the Department of Commerce, Bureau of Industry and Security and/or the Department of State, Directorate of Defense Trade Controls. Issuance of any required license is a prerequisite for this position.
This is odd, because that license is only required if the person filling the position is not a U.S. citizen or permanent resident. And if the person is not, a work visa is required, which is a prerequisite prior to any export license. So why the emphasis on the requirement of an export license? Do people now think that export licenses may be required for any jobs involving controlled technical data?
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Copyright © 2011 Clif Burns. All Rights Reserved.
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5 Comments:
I don’t think the confusion is that a U.S. Person may require a license (may be a bit of that too)but what to expect when applying for the proper visa. There seems to be a fair share of confusion there.
I’m aware of instances where the visa applicant has been asked if a license is required for the position and then has been required to prove that one has been received before the application is accepted. It seems the embassies may a bit confused on the order of things too.
Well, at a minimum, private and commercial co’s are learning a little about export control for the first time.. and likely running scared (..who said, “JOB Opportunities” – LOL). But, to your point cliff, they did say *May* — and arguably that’s a prudent statement —if they’re hiring a FN from say Syria or Iran or someone on a prohibited list — They just might *need* a license, from someone,(OFAC, BIS, …) for something (CCL)
Do you disagree?
I think we have the immigration bar to thank for the misperception among the HR community. Virtually all the voluntary disclosures involving release of technology to foreign person employees that I have handled over the past several years involved engineers, scientists or IT folks who were lawfully admitted on non-immigrant visas obtained through counsel who failed to even mention possible deemed export license issues to their clients.
Many immigration practices are high volume, in which most of the documents being generated are templates filled in by legal assistants and secretaries who have not been trained in the deemed export rules, loosely supervised by counsel who may not have much more if any export training. Prior to the new I-129, when I have complained about the absence of advice regarding the possible application of the deemed export rule to clients, I have been advised that most immigration counsel regard that as “not my job”.
Since the new I-129 provisions were announced, many immigration counsel are attempting to teach themselves without consulting with export practitioners, or are just punting by offering half-baked warnings like the one in this post. To me, this is comparable to drafting a will or setting up an LLC for a client without either being sufficiently proficient in tax law to provide competent advice on the tax consequences or bringing in a tax lawyer or accountant to consult on the tax consequences.
There does seem to be a little confusion on the job posters part, but it does bring up the question on when we will start seeing such inclusions on graduate school applications and grant applications. I ran a lab that had equipment on an XC list, and there was a couple of students from watch list states that would request to use that piece of equipment. At the end of the day I would end up doing the experiment for them.
It seems to me it’s not only a matter of confusion but also companies want to generalize the requirement to “cover the bases.” It is common for immigration counsel to advise their clients without being aware of the deemed export laws. If the export compliance consultant is proactive on keeping the company informed on current regulatory changes, he or she can clear up any confusion. I would have to agree that this type of employment advertisement can be very misleading and a disadvantage to the company when looking for talent.
