The vetting process for international scholars who have an invitation to visit, plan on graduate studies or collaborate on research activities at Rensselaer can take several weeks or months to complete. It is dependent on the person’s background, citizenship, experience and planned area of interest or activities while at RPI. When taken as whole, inclusive of HR or ISSS requirements, it is recommended that the department, associated with the scholar’s interest, begin the process for bringing the individual to RPI 3-6 months before the scholar wants to arrive. This will allow sufficient time for obtaining required information and processing.
Export Control Office information request will include the Department Request Form to Bring Scholar on B, F or J Visa. It is advises when filling in the request be as specific as possible regarding the international scholar’s scholastic records, employment, etc. in his/her home country and recent country of residence.
Therefore the submittal the following documents to HR or ISSS is also required the export control office:
- Completed Department Request Form to Bring Scholar on B, F or J Visa.
- Appointment Letter from Dean. The letter must specify the dates of the appointment and how the scholar will be supported during his/her stay.
- Copy of biographical page in passport for the scholar (and dependents, if any)
- Copy of Curriculum Vitae.
- Statement of Interest.
- Source of funding.
- Complete the Export Control Initial Assessment Questionnaire.
- Noted background experience with instrumentation, software, research tools.
- Description of the research projects funding source, scope of work and expected contribution of their effort to the PI and RPI.
Once HR or ISSS completes the individual’s docket, they will submit it to the ECO for vetting purposes and compliance with any EC regulation. The ECO efforts are required prior to the individual receiving final acceptance by RPI. If it is determined that an export license is required, the ECO will be in contact with the Department for obtaining any additional information required for the license application.
Note that this process of obtaining permission from Export Control does not have a designated timeframe due to the number of factors that Export Control must evaluate and adjudicate.
The ECO will provide HR or ISSS with an EC assessment report providing a summary of findings and its final recommendation authorizing the visit or a cautionary note with respect to export control concerns, or rejection.
Foreign National Employees
The hiring of foreign nationals as employees requires due diligence with respect to compliance with the federal export control laws. This compliance plan addresses export control vetting procedures that comply with EAR, the ITAR and OFAC and also the U.S. Citizenship and Immigration Services (USCIS) Form I-129 part 6 entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Nationals in the United States”.
Addressing the compliance requirements involves coordination between Human Resources (HR), International Scholar and Student Services (ISSSO), and the Export Control Office. Therefore, this section of the Plan is intended as a guide in completing the I-129 Part 6. Specific questions should be directed to the Export Control Office.
II. Compliance Checkpoints
A. USCIS I-129 Deemed Export Attestation.
The “Petition for a Nonimmigrant Worker”, USCIS Form I-129 Part 6 section must be completed for H-1B, H1B1, L-1, or O-1A visa types. The petitioner, in this case RPI’s HR, must state whether the nonimmigrant worker will require a “deemed export” license to conduct the proposed work duties. Reviewing the export control regulation’s definition of “deemed export,” a “deemed export,” is the transfer (in country) of controlled information or technology to a “foreign person” in the United States. The transfer (in country) of controlled information or technology is “deemed” to have been released to the prospective foreign national employee’s home country.
Although federal agencies conduct a review of visa applicants, they do not know the specifics as to the type of proprietary information and export controlled information a foreign person could access. Thus, for HR filing the I-129, the ECO is responsible for performing a “deemed export” review to determine if a “deemed export” license is needed from the appropriate Federal agency before a foreign national employee can have access to the controlled information or technology.
The completed I-129 Petition is filed with USCIS by HR. The deemed export review includes review of the planned work as well as vetting the prospective employee’s background and experience for any export control issues. If the foreign person’s assessment results in a determination that a license is needed, the ECO will submit a license application to the appropriate U.S. governmental agency. Note that it can take a considerable amount of time, weeks to several months, for a license request to be processed, so the deemed export review should occur as soon as practicable. During this entire period, no access to controlled materials may be given until the license has been received. As an additional and important note, there is no assurance that a license will be granted and for some foreign individuals and some technology there is an agency’s general policy of denial.
III. Bona Fide Full Time Foreign National Employees - Exemption (ITAR) and Technology and Software Unrestricted Exception (EAR)
Both the ITAR and EAR contain a limited license exemption/exception for full-time foreign national employees. The limitations on the exemption/exception are specific to the “item” or “information” being released. The exemption/exception license requirement is permanent residency in the U.S. throughout the period of performance, and may not be applicable depending upon the home country of the prospective foreign national employee. Additionally, the RPI is required to keep documentation on file about how the exemption/exception’s applicability was determined. To qualify for the exemption/exception license, the organization must meet all the following conditions:
- The person must be a full-time, regular employee. Post-docs, students, and visiting researchers or scholars usually do not qualify.
Note: For universities, the bona fide full time employee is usually only applicable to H-1B visa holders. Most students (graduate and undergraduate) and a majority of post-docs do not qualify as employees under the regulations as their roles are primarily that of a trainee.
- The employee must have a permanent U.S. residence during his or her period of employment.
- The citizenship of the foreign national will impact the license viability under the respective export control regulations:
a. Under the ITAR, the employee cannot be a foreign national of an embargoed country.
b. Under the EAR, the citizenship of the employee can be restrictive and will depend on the CCL classification of the item(s).
- RPI must notify the employee in writing that the employee cannot transfer or re-export to other foreign nationals the controlled technical data/technology they have access without prior government approval.
- The foreign national employee is required to sign an NDA.
Recently, as noted via Concur, travel arrangements were made for an international individual to visit with you. Noting that these visits are usually conducted on Rensselaer’s campus, either in your office or a conference room, you are being alerted to the take the necessary legal precautions regarding the nature of your discussions and tour of Rensselaer facilities. Just as international visitors are subject to obtaining the proper visa before entering the U.S., these “foreign nationals” are also subject to restrictions governing their access to export controlled information/technology.
Specifically, the U.S. Export Administration Regulations (EAR), [15 CFR Part 734(b)(3)], state that “technology or software is ‘released’ when the foreign nationals visually inspect, orally exchange, or apply the U.S. based information acquired while in the U.S.” In addition, the provisions of the EAR, [15 CFR Part 734(b)(1)], state that visitors are subject to the EAR due to the fact that “release of technology or software subject to the EAR to a foreign national in the U.S. is defined as an Export.”
Please note that if proper confidential agreements and/or deemed export license requirements have not been executed and/or obtained prior to meeting, discussions, [ such as offering a technical resolution of a specific problem expressed by a foreign national during the visit], a release of considerable technical information may occur. This release can potentially be considered a prohibited “deemed export” of controlled data and technical information. If you have any questions, please contact Rensselaer's Export Control Office for further information. The Office is administered by the Office of the General Counsel, and may be reached by phone at (518) 276‐3777.
To ensure compliance with the Export Control laws of the United States, Rensselaer must be able to prove it has exercised due diligence regarding all international visitors. While we have an established process in place for individuals with a formal identification from Rensselaer, including faculty, staff and students, we are also required to demonstrate that we can assume responsibility for our short-term visitors.
Therefore, Rensselaer’s Office of the Provost asks all faculty responsible for arranging seminars and meetings, as well as those hosting international guests for a short visit, to notify the Export Control Office, email@example.com, of the name, nationality, background information, and scope of visit of any international visitor you know will be coming to Rensselaer under your auspices.
As you have heard on numerous occasions, compliance with our Export Control protocols are designed to be minimally intrusive while protecting the Institute as well as the individual members of its faculty. If you have any questions, please consult the export control website or contact the ECO.
Dr. Prabhat Hajela Provost
The international transfer of information via various mail and delivery/courier services requires diligence on the part of the sender. The transfer of any “item” overseas is an export, therefore, all overseas “exports” or “release” must comply with all U.S. export laws and regulations.
An export control International Mailing Form, which is available at the department business manager’s office, should be forwarded to the ECO with a copy of courier mailing label. Required information includes:
- Detailed package contents
- EAR CCL or ITAR category (Please contact the ECO for assistance.)
- Name and address of ultimate receiver
- Number of articles being sent to the same address (A separate form is required for each.)
- Sender's name
- Sender's department
- Account/fund number
- Signature of PI/originator