Effective February 20, 2011, the U.S. Citizenship DS 2019 and Immigration Services (USCIS) issued new requirements for employers sponsoring foreign persons through the I-129 Petition for a Non-Immigrant Worker process. Specifically, the revised I-129 form added Part 6, Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.
This new required attestation stems from the Deemed Export Rule under the U.S. Department of Commerce’s Export Administration Regulations (EAR) and the U.S. Department of State’s International Traffic in Arms Regulations (ITAR), which provides that the transfer, release, or disclosure of controlled technical data, technology or software to a citizen or national of a foreign country, even if in the United States, is ‘deemed’ to be an export to that country. However, inclusion of the Part 6 of the I-129 application is the first time export control determinations have been an explicit part of the immigration application process as directed by USCIS.
The I-129 Export Control Attestation Form EXPORT-F-001 is completed for foreign persons applying for an H-1B, H-1B1 Chile/Singapore, O-1A, L-1 visa ONLY. Foreign persons applying for other visa types will follow a different process. The applicant’s Supervisor or department manager should complete the form since they are likely to be most knowledgeable of the day-to-day activities and risks to controlled items. It is the responsibility of the Supervisor to monitor changes in job descriptions and/or departmental procedures that may put a foreign person at risk of exposure to controlled or restricted items. If the applicant will be at risk for exposure to controlled items, the Supervisor and applicant will be required to complete Export Control Compliance training. For questions, please contact the export control mailbox at exportconrol@miami.edu.
The I-129 form is required for all new and renewing applicable visas and is to be submitted to the Export Control Compliance mailbox as per the instruction within the form. The visa application process does not continue until the I-129 has been reviewed and approved by the Director, Export Control Compliance.
If the Requesting Department is unsure how to assess export control risks that may exist within the department, s/he should contact the Director of Export Control Compliance for assistance at 305-284-9558. Reviewing contracts and agreements is the first place to start in assessing export control risks. Technology Control Plans should be in place to help mitigate risks of releasing (or exporting) the controlled items.
The DS-2019 Applicant Review Form – EXPORT-F-006, "Certificate of Eligibility for Exchange Visitor (J-1) Status" is required to support an application for an exchange visitor visa. This form permits a prospective exchange visitor to seek an interview at a U.S. embassy or consulate in order to obtain a J visa to enter the United States. Effective February 14, 2014, the University of Miami (UM) Exchange Visitor Program Policy and Procedure process for all UM campuses was updated by International Student and Scholar Services (ISSS) to include review by UM's Export Control Compliance office. This review process was included to comply with federal regulations as well as UM's policy on export controls.
This required process stems from the "deemed export" rule under the U.S. government's Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), which provides that the transfer, release, or disclosure of controlled technical data, technology or software to a citizen or national of a foreign country, even if in the United States, is deemed to be an export to that country. It is the responsibility of UM to screen and review applications of foreign persons for sponsorship prior to submitting to the U.S. Department of State for processing.
It is the responsibility of the Supervisor to monitor changes in job descriptions, responsibilities and/or departmental procedures that may put a foreign person at risk of exposure to controlled or restricted items. Such changes may require a review by the Director of Export Control Compliance to ensure adherence to U.S. export control laws and regulations. Any changes should not impact the status of the individual's visa, unless a license is required and cannot be obtained. No controlled / restricted items may be released to any foreign person until a review is completed by the Director and, if required, a license by the governing agency is received. If, at any point, the Supervisor or sponsoring department is unsure how to complete the form or has questions about items or projects that may be considered controlled or restricted, the Supervisor or sponsoring department should contact the Export Control Compliance office for guidance.
