Keep in mind that export control regulations also require a license for the release of certain items, technology, or information to persons from other countries while they are located in the United States. This concept is known as the "deemed export rule." Consequently, before you hire or engage a foreign national to work with certain sponsored programs or in certain secure areas, you need to be aware of the implications of export control laws on employment.
Hiring an H-1B employee? Please complete the form linked here to obtain clearance from Export Control.
As a hiring manager for an employee who will need university sponsorship for H-1B work authorization, you will need to collaborate both with UAB Export Control and UAB’s Office of International Faculty & Staff Immigration Services (IFSIS). The Export Control director will need to know if the prospective employee's department/division (or any department/division the H-1B employee will be working with) uses, produces, modifies, or maintains items, technology, or information that is subject to export control restrictions. In addition, you will need to provide the prospective employee's nationality and describe the anticipated duties and access privileges.
You can determine whether or not particular technology is restricted by reviewing the applicable lists of controlled technologies maintained by EAR and ITAR or by contacting the manufacturer of specific devices. An alpha-numeric classification, known as an Export Control Classification Number, or ECCN, has been ascribed to controlled technologies. EAR's Commerce Control List (CCL) can be found at http://www.access.gpo.gov/bis/ear/ear_data.html#ccl; ITAR's U.S. Munitions List (USML) can be found at http://pmddtc.state.gov/regulations_laws/documents/official_itar/ITAR_Part_121.pdf. It is advisable for each department to maintain an inventory of any restricted technology that it uses, maintains, or develops.
The ECCN can also be obtained by using Visual Compliance, an online export controls compliance application to which UAB subscribes. Access to Visual Compliance can be obtained by contacting the University Compliance Office. In addition, federal law requires UAB to ensure that it does not undertake business dealings with an individual or entity listed on the Office of Foreign Asset Control (OFAC) Specially Designated Nationals (SDN) and Blocked Persons List.
The OFAC SDN list includes:
- Terrorists
- Terrorist supporters
- International narcotics traffickers and
- Those engaged in activities related to the proliferation of weapons of mass destruction.
UAB’s Office of International Student and Scholar Services will perform the initial regulatory restricted party screening using the Visual Compliance™ online portal upon receipt of information provided by your department/division during the H-1B work authorization process.
Licensing
A license is necessary if the foreign national is likely to come into contact with restricted technologies and that person is from a country to which the restriction of that specific technology applies. So, you must first determine if the department where the foreign national will be working uses or maintains restricted technology. Next, you must determine if the employee is likely to encounter the restricted technology. This evaluation should be done on a case by case basis, taking the particular function of the prospective employee and the operational environment of the department into careful consideration.- If it is determined that the prospective employee will have access to restricted technology, then you must look to see if the export restrictions on that technology apply to his or her home country.
- This can be done by entering the ECCN for the restricted technology into Visual Compliance, a database accessible by the University Compliance Office.
- Even if you determine that the prospective employee is likely to encounter restricted technology, you still have options.
- For instance, you could evaluate the feasibility of erecting access controls to block the prospective employee's access to the restricted technology and develop a Technology Control Plan Plan
- Your department could also determine that hiring the employee is simply too expensive, difficult, or time consuming and decide not to proceed with the petition.
- Only if your department determines that the prospective employee needs access to the restricted technology and that the employee will add sufficient value to the institution, does it have to obtain a license.
Depending on the timeframe of the hire and USCIS processing times for H-1B work authorization, there is a good chance that the employee will arrive before the license granting access to any restricted technology. Therefore, your department should have a detailed and actionable plan for controlling access to any such technology until it obtains an export control license, as applicable. Since the export license application process can require much information for processing, you should contact the Export Control office for assistance as early as possible in the process. It usually takes several months to obtain an export license after filing, so it is important to start the process as soon as it is determined that a license may be necessary. Once the application is made, the status of the license can be tracked.