Deemed Export Assumptions
As we’ve discussed, the revised Form I-129, Petition for Nonimmigrant Worker, now requires a petitioner to complete Part 6 – Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States. Not surprisingly, this certification has left petitioners questioning which foreign nationals in fact require a deemed export license.
The license requirement is dependent on two factors: (1) the nature of technology that will be released to the foreign national; and (2) the foreign person’s home country. Many petitioners focus on the second factor – home country – and mistakenly assume that a foreign person with a terrorist supporting home country (i.e., EAR Country Group E:1) always requires a deemed export license, regardless of the nature of the technology that will be released. This is not the case. Certain technologies may be released to EAR Country Group E:1 foreign persons without a deemed export license so a thorough review of the subject technology should be conducted before jumping to any conclusions.
One such classification of technology that often does not require a deemed export license prior to release to EAR Country Group E:1 foreign nationals is EAR99 technology. Under the EAR, the release of EAR99 technology only requires a deemed export license prior to release to Cuban nationals, and in some limited circumstances to Iranian nationals. In those instances, a U.S. Department of Treasury, Office of Foreign Assets Control (“OFAC”) license would be required prior to release of EAR99 technology to an Iranian national when one knows or has reason to know that the technology is intended for Iran or the Government of Iran (unless the technology is information and informational materials). BIS FAQs explain this concept further.
Focusing on the technology factor, it should be noted that even with EAR99 technology, there must be a release of “technology,” (i.e., specific information necessary for the development, production, or use of a product) in order to necessitate a deemed export license requirement.
Another common erroneous assumption is that, when required, deemed export license applications will be denied for any foreign national with a home country of Country Group E:1. In fact, we have seen many approvals of deemed export licenses for E:1 foreign persons across a range of industries, from computers to semiconductors to encryption and chemicals. The long and short is that one must conduct a review of the “technology” before making any deemed export assumptions based on a foreign person’s home country.