Export Compliance / New Form I-129

Report
1-129 Form Deemed Export Attestation
UTHSC
May 16, 2011
Basic Introduction

The U.S. government regulates the transfer of controlled items and technical data to
foreign nationals under the Export Administration Regulations (EAR) and the
International Traffic in Arms Regulations (ITAR).

For the first time the new Form I-129 incorporates export control regulations into the
visa petition process.

As of February 20, 2011, the new I-129 form requires the employers sponsoring
workers in the H-1B, H-1B1, L-1, and O-1A nonimmigrant categories to certify their
compliance with deemed export licensing requirements.

Specifically, for technology or technical data to which workers have access, the
employer must review the EAR and ITAR and determine that either:

1) a license is not required to release such technology or technical data to the
foreign worker or

2) a license is required and the employer will prevent access to the controlled
technology or technical data until and unless the employer receives the required
license or other authorization.
What are the Export Administration Regulations (EAR)?

The Department of Commerce, Bureau of Industry and Security (BIS),
administers the Export Administration Regulations (EAR). The EAR
regulate the export of items, materials, technology and software that is
predominately civilian in nature, but may have military applications
(commonly termed “dual-use”).

The EAR Database may be found at the following website:
http://www.access.gpo.gov/bis/ear/ear_data.html

The BIS maintains the Commerce Control List (CCL) within the EAR
which lists items, materials, technology, and software subject to the export
licensing authority of BIS. An alphabetical index to the CCL can be found
here: http://www.access.gpo.gov/bis/ear/pdf/indexccl.pdf
What are the International Traffic in Arms Regulations (ITAR)?

The Department of State administers the International Traffic in Arms
Regulations (ITAR). The ITAR regulate the export of defense articles and
technology.

Controlled goods and technology in the ITAR are listed in the US
Munitions List (USML), which can be found here:

http://www.access.gpo.gov/nara/cfr/waisidx_08/22cfr121_08.html
What is ‘Fundamental Research’?

Fundamental Research is defined in National Security Division Directive 189 as
follows:
‘Fundamental research’ means basic and applied research in science and
engineering, the results of which ordinarily are published and shared broadly
within the scientific community, as distinguished from proprietary research and
from industrial development, design, production, and product utilization, the
results of which ordinarily are restricted for proprietary or national security
reasons.

Importantly, the Fundamental Research Exclusion applies only to the dissemination
of research data and information, not to the transmission of material goods.

‘Fundamental Research’ is excluded from export control laws. However this exclusion
is lost if UTHSC accepts any contract clause that:

1) Forbids the participation of foreign persons

2) Gives the sponsor a right to approve publications resulting from the research; or

3) Otherwise operates to restrict participation in research and/or access to and
disclosure of research results.
Deemed Exports

Q&A from “Deemed Export” Questions and Answers page on
www.bis.doc.gov:

What is a deemed export?

An export of technology or source code (except encryption source code) is
"deemed" to take place when it is released to a foreign national within the
United States. See §734.2(b)(2)(ii) of the Export Administration Regulations
(EAR).

What is a "release" of technology?

Technology is "released" for export when it is available to foreign nationals
for visual inspection (such as reading technical specifications, plans,
blueprints, etc.); when technology is exchanged orally; or when technology is
made available by practice or application under the guidance of persons with
knowledge of the technology. See §734.2(b)(3) of the Export Administration
Regulations (EAR).
Deemed Exports

Q&A from “Deemed Export” Questions and Answers page on
www.bis.doc.gov:

What is "technology"?

Per Part 772 of the Export Administration Regulations (EAR), "technology" is
specific information necessary for the "development," "production," or "use"
of a product. The General Technology Note states that the "export of
technology is controlled according to the provisions of each Category." It
further states that "technology required for the development, production, or
use of a controlled product remains controlled even when applicable to a
product controlled at a lower level." Please note that the terms "required,"
"development," "production," "use," and "technology" are all defined in Part
772 of the EAR. Controlled technology is that which is listed on the
Commerce Control List.
Instructions for Completing the Export Control Attestation UTHSC
Short Form

Part I requires the signature of the Head of the department the
employee will be joining. A Business Manager may sign Part 1 on
behalf of the Department Head.

Please make sure to provide the Personnel Number if known.

Also, for question #8, please be sure to provide all the account
numbers that will be used to pay the employee.
Instructions for Completing the Export Control Attestation UTHSC
Short Form



Specific Instructions for Questions #6 and #7
It is recommended that the sponsoring PI provide answers to
Questions # 6 and #7.
It is also recommended that the person answering to Questions #6
and #7 review the EAR’s Commerce Control List (CCL) and ITAR’s
US Munitions List (USML) for items associated with the employee’s
planned research and review the definition of ‘Fundamental
Research’.
Instructions for Completing the Export Control
Attestation UTHSC Short Form

Specific Instructions for Questions #6 and #7
At the time of hiring process, the employer may be unsure to what items and
technology the employee will have access and/or if the research the
employee will conduct meet s the definition of ‘Fundamental Research’. In
these situations, Questions #6 and #7 can be answered as “No”, however, if
the answers to these questions change before filing a visa extension, it will
be the responsibility of the designated departmental representative to
contact the Office of International Affairs and the Export Control Officer and
provide them with an update of the employee’s responsibilities.

After Part I is completed, please send the form to the Export Control
Compliance Officer at the following address. The Export Control Compliance
Officer will then complete Part II.
UTHSC Export Control Officer
Office of Research Compliance
910 Madison Ave, Suite 650
Memphis, TN 38136

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