Although Export Control can apply to goods, Deemed Export applies to Technology. This blog will only deal with Deemed Export.
Certain technology is controlled by our Government and restricted for importing to other countries. The Commerce and State Departments issue licenses for such exports. This rule has long been in the books, but was not really enforced. Suddenly in December of 2010, the new I-129 form came in, and the form included questions about deemed export for H-1B, H1B1,L-1 and O-1A.
The employer has to first ascertain what the beneficiary’s citizenship country is. (Not country of birth) Particularly countries like Iran, Iraq, Lybia, China are suspect. Then ascertain what technology or technological data the beneficiary has access to. If the employer needs a license from the Department of commerce/State to export that technology to that person’s country, then the employer has to first get the license before filing the H-1B, or deny access to the person until such license is obtained. This process can take about 6 months.
For large high speed Computers Systems, usually source code is controlled, not object code. Also sophisticated networking systems and encryptions are usually controlled.
There are two types of Deemed Export regulations: the Export Administration Regulations administered by the Department of Commerce, (EAR) and the International Traffic in Arms Regulations, (ITAR) administered by the Department of State. More information on these can be found at:
EAR typically deals with high speed computers, semi conductors, telecommunications, and technology dealing with manufacturing equipment. ITAR deals with technology which has space or military applications.
To get the license for nationals from countries like Iran, Iraq, Syria, China and Libya is very difficult, especially for ITAR
The penalties for violation of this law is severe. And ICE will audit employers. Civil penalties range is either $250,000 or twice the gain from the particular technology. Criminal penalties range from up to 1 million USD, and up to 20 years prison term.
There is of course no prior evidence that anyone on H-1B ever exported any technology back home. But, Immigration is fast becoming a huge cash cow for the Government. We love to hate immigrants, and make employers who hire immigrants pay severe penalties. And in the process we will lose our competitive edge to other countries.