Kris West Associate VP for Research Director, Office of Research Compliance. 8/18/2011 Office of Research Compliance 1

Transcription

1 Kris West Associate VP for Research Director, Office of Research Compliance 8/18/2011 Office of Research Compliance 1

2 New Requirement Emory University must now CERTIFY on U.S. Immigration Form I-129 whether or not a license will be required in order to allow many of our foreign national employees to have access to controlled technical information or technology 8/18/2011 Office of Research Compliance 2

3 New Section on I-129 Form 8/18/2011 Office of Research Compliance 3

4 Which Visa types are affected by the Form I-129 Certification Requirement? H-1B H-1B1 (Chile and L-1 O-1A Singapore) Primarily Work Authorization Visas 8/18/2011 Office of Research Compliance 4

5 WHY??? Why do export controls regulations matter to me or to my lab? The regulations are applicable to all of our exports, including deemed exports of regulated information and technology AND Whether or not your foreign national employee will need a license depends upon application of these regulations to your research project 8/18/2011 Office of Research Compliance 5

6 What are Export Control Regulations? And, what is a deemed export? Before we answer this question, we need to review a few fundamentals regarding Export Controls. 8/18/2011 Office of Research Compliance 6

7 Fundamentals: Export Controls are group of federal regulations designed to advance national security, foreign policy, and economic interests of the United States Regulate payments, transfer or shipment of goods, and transmission of sensitive information to foreign governments and persons 8/18/2011 Office of Research Compliance 7

8 A Few Fundamentals (continued) Some form of these regulations have been around for over 40 years, but they have become the subject of increased focus since 9/11 Regulatory scheme may require a license prior to engaging in certain export activities License requirement is dependent upon the export s classification and its destination 8/18/2011 Office of Research Compliance 8

9 Federal Agencies that regulate Exports U.S. Department of State Directorate of Defense Trade Controls ( DDTC ) U.S. Department of Treasury Office of Foreign Assets Control ( OFAC ) U.S. Department of Commerce Bureau of Industry and Security ( BIS ) U.S. Patent and Trademark Office Bureau of the Census U.S. Department of Homeland Security 8/18/2011 Office of Research Compliance 9

10 Research universities engage in a number of activities that can implicate export controls regulations, including: Multi-national research collaborations Hosting or employing foreign nationals as researchers and visiting scholars International shipment of research equipment and transmission of technological information Foreign travel 8/18/2011 Office of Research Compliance 10

11 What is an Export? An export is an actual shipment or transmission of items, including technical services and/or technical information, outside of the United States 8/18/2011 Office of Research Compliance 11

12 What is a Deemed Export? This is another type of export that is very significant to higher education Deemed exports occur INSIDE of the United States 8/18/2011 Office of Research Compliance 12

13 What is a Deemed Export? (continued) A deemed export is a transfer or release of regulated technical information (including source code) or technology to a foreign national while he/she is in the United States This transfer or release of information or technology is deemed to be an export to the home country of the foreign national, e.g., a release of this type of information to a Chinese citizen while he or she is in the U.S. is considered to be a release of that same information directly to the country of China itself 8/18/2011 Office of Research Compliance 13

14 Deemed Exports - Continued A deemed export may occur through an oral or written transmission of information, or through visual inspection Includes , telephone, websites, laboratory tours, foreign national research collaborations, employment of foreign nationals in the U.S. This is the most challenging export controls compliance issue for higher education 8/18/2011 Office of Research Compliance 14

15 But, there are important Exceptions and Exemptions that are helpful to us: For example, The Deemed Export Rule does NOT apply to: - Naturalized citizens - Permanent residents ( Green Card holders) - Individuals granted legal status as political refugees or political asylum holders 8/18/2011 Office of Research Compliance 15

16 Exemptions from Deemed Export Regulations Publicly Available Information (734.7) Generally accessible to the interested public Found in periodicals, books, print, electronic and other media forms Found in Libraries Shared at open conferences Educational Information (EAR 734.9) Released by instruction in catalog courses Associated teaching laboratories of academic institutions Patent Information (EAR ) Public information available on patent application Fundamental Research (EAR 734.8) Very important exemption for higher education 8/18/2011 Office of Research Compliance 16

17 Fundamental Research Exemption What is fundamental research? Basic and applied research in science and engineering when the resulting information is ordinarily published and broadly shared within scientific community 8/18/2011 Office of Research Compliance 17

18 What is NOT Fundamental Research? Research that is proprietary, i.e., restricts publication and other forms of sharing research results in some way, such as requiring sponsor approval prior to publication or restricting the nationality/citizenship of those who may work on the project. Industrial development, design, production, and product utilization These activities usually restrict dissemination of research results for proprietary or national security reasons Inclusion of publication or citizenship restrictions in our research agreements destroys the Fundamental Research exemption for the project 8/18/2011 Office of Research Compliance 18

19 Will an Export License be Required? Most deemed exports at Emory will NOT require a license due to availability of the Fundamental Research Exemption and the broad definition of use technology, but the deemed export analysis nevertheless must be conducted and documented All NIH and NSF funded research is Fundamental Research because they do not impose publication or citizenship restrictions Certain deemed exports may require a license depending upon the sensitivity of the technology and the country of citizenship of the foreign national employee NOTE: Deemed exports to citizens of Iran, North Korea, Libya, Syria, and under some circumstances, Cuba, will likely require a license if there is no available exemption or license exception 8/18/2011 Office of Research Compliance 19

20 So, what do I have to do to hire a foreign national to work on research in my lab? The process is the same except for the following: When requesting a foreign national hire, the International Student and Scholar Programs office will provide a decision tree that will help you determine whether your project meets the requirements for Fundamental Research. 8/18/2011 Office of Research Compliance 20

21 I-129 Deemed Export Certification Decision Tree Follow the question path and initial the final decision box(es) relevant to the to the prospective employee s position duties. IMPORTANT NOTE - If the prospective employee will be performing multiple job duties, such as conducting research AND providing clinical or administrative services, EACH proposed job duty must be analyzed separately in accordance with this Decision Tree. Questions? Call the Office of Research Compliance (404) * Use technology is specific information necessary for the operation, installation (including on-site installation), maintenance (checking), repair, overhaul AND refurbishing of a product. If the technology (i.e., specific information) available to the foreign national does not meet ALL of these attributes, then it is not use technology for deemed export licensing purposes. ** Technical Data Information that may take the form of blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices such as disk, tape, read-only memories. Is the employee being hired to engage in research funded by NIH or NSF? Yes Fundamental Research No license required. Initial corner box; enter employee s name & date of review below. Review, sign, & date attached Certification form. No Is the employee being hired to provide clinical services involving medical treatment? Yes No license required. Initial corner box; enter employee s name & date of review below. Review, sign, & date attached Certification form. If the employee is being hired to conduct testing and/or research that is NOT funded by NIH or NSF, does the contract or grant contain restrictions on publication or the citizenship status of research staff? Yes Initial corner box. Enter employee s name & date of review below. Complete attached Deemed Exports Questionnaire and submit to your unit s E.C. Coordinator KEY Move to next question Initial box; enter employee name & date of review. Review, sign & date attached Certification form Initial box; enter employee name & date of review. Complete attached Deemed Exports Questionnaire No Will the employee have access to use technology*or technical data** (see definitions below) or non-publicly available source code for software? Yes Is the employee being hired to teach catalogue courses or to provide clerical administrative services? No No license required. Initial corner box. Enter employee s name & date of review below. Review, sign, & date attached Certification form. Prospective Employee s NAME: Date of Review: (Review of Decision Tree) No Yes Will the employee have access to encryption technology in excess of 64 bits? Yes Is the employee a citizen of Cuba, Iran, North Korea, Syria or Sudan or Libya? Yes Initial corner box. Enter employee s name & date of review below. Complete attached Deemed Exports Questionnaire & submit to your unit s E.C. Coordinator.

22 If you apply the decision tree and determine that your project constitutes Fundamental Research, just sign and date the form entitled Emory University Internal Certification - No License Required. Questions? Call the Office of Research Compliance (404) Emory University Internal Certification No License Required By signing this document, I confirm that I work, or will work, in a capacity that enables me to anticipate the details of the job duties and responsibilities regarding the employment of ( Prospective Employee ), a citizen of, should he/she be granted permission from the U.S. Government to work in the United States at Emory University. Further, I am familiar with the setting in which Prospective Employee will be working, including his or her access to equipment, software, and technical information. I confirm that I have reviewed the attached I-129 Certification Decision Tree ( Decision Tree ) and, having initialed the appropriate result, I certify that based upon the attached Decision Tree, the employee will not be engaging in any employment related activity that should require a deemed exports license. 8/18/2011 Office of Research Compliance 22

23 If, after application of the Decision Tree, you determine that the project may NOT constitute Fundamental Research, fill out the Deemed Export Questionnaire. Questions? Call the Office of Research Compliance (404) I-129 DEEMED EXPORT QUESTIONNAIRE If you are completing this form, you have referred to the attached I-129 Deemed Export Certification Decision Tree and you have determined that there is some risk that the employee will have access to potentially controlled technology or technical data and there is no immediately apparent exclusion or license exception available. It is very important that you complete this form fully and provide as much detail as possible. Civil and Criminal penalties for violations of U.S. Export Controls Regulations are extremely severe and include substantial fines, prison terms, and potential exclusion from the right to export. Definitions: Technology - (15 CFR Section 772) Any information and know-how (whether in tangible form, such as models, prototypes, drawings, sketches, diagrams, blueprints, manuals, or software - or in intangible form, such as training or technical services) that is required for the development, production, or use of a good, but not the good itself. Technical Data - (22 CFR Section ) Information required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of a defense article. This includes information in the form of blueprints, drawings, plans, instructions, diagrams, photographs, formulae, tables, engineering designs and specifications, and manuals and instructions written or recorded on other media or devices such as disk, tape, or read-only memories. This definition does not include information concerning general scientific, mathematical or engineering principals commonly taught in schools, colleges and universities, or information in the public domain. Access - Permission, liberty or ability to enter, approach, or pass to and from a place or to approach or communicate with a person or thing; freedom or ability to obtain or make use of something. Access could include discussions about technology or technical data, training related to the technology, availability of shared drives or websites, and use of laboratories and equipment. This form must be completed by the Sponsor (i.e., individual who will be sponsoring the prospective employee for the H1B visa or other non-immigrant visa petition). Sponsor: Sponsor s Signature: Date Form Completed: Sponsor Department / Unit: 8/18/2011 Office of Research Compliance 23

24 What actions can Departments take to facilitate this Process? Provide the International Student and Scholar Programs (ISSP) office with the appropriate and complete documents several months before the foreign national s proposed start date. Add the following statement to your employment letters for all H1B, H1-B1, L-1 and O-1A applications: This offer letter is contingent upon Emory University s ability to obtain any required deemed export licenses. 8/18/2011 Office of Research Compliance 24

25 Review - When is an export license required? When the foreign national will work on projects where there is no intention of publishing the results of the work or there is a sponsor approval process to publish Whenever there is unpublished export controlled information that must be shared with a foreign national for the research When it is necessary to visually or orally disclose a controlled equipment s development, production, or use technology (includes equipment used in Fundamental Research) When the foreign national will be merely exposed to equipment that was specifically designed or developed for military or space applications When the foreign national will work on certain noncommercial encryption software 8/18/2011 Office of Research Compliance 25

26 What if there is a Change of Responsibilities after arrival? If the responsibilities of the foreign national employee change during the course of their employment, I-129 regulations stipulate that an amended I-129 petition must be filed. Please contact the International Student and Scholar Programs (ISSP) office to determine if an amendment to the current petition is required. At that time, a new export control review must be conducted. 8/18/2011 Office of Research Compliance 26

27 Why should Institutions address this issue? The University and the signatory of the I-129 personally may be subject to criminal sanctions for false statements to the U.S. government if the I-129 form is completed inaccurately. Such criminal penalties would be in addition to penalties imposed under the *EAR and the **ITAR (e.g. up to $1 million per violation, up to 20 years in jail, denial of export privileges, debarment from government contracts) for export violations. *Exports Administration Regulations **International Traffic in Arms Regulation /18/2011 Office of Research Compliance 27

28 QUESTIONS? Office of Research Compliance (404) /18/2011 Office of Research Compliance 28