As practitioners, we have seen increasing examples of the interface between sensitive technologies and the procurement of visas for foreign nationals seeking to work for companies engaged in such technologies. Since 9/11, there has been greater government focus on security issues, including in the issuance of visas and in the admission of such individuals. We have also learned the lesson of advising clients well in advance of the potential significant delays at consulates in obtaining security clearances. Terms such as Visas Donkey and Visas Mantis have become part of our daily vocabulary. This article deals not only with obtaining these security clearances but focuses on the related and potentially more significant issues of obtaining required licenses from the Departments of Commerce and State (DOC & DOS). The goal behind these laws is simple - to prevent the export of controlled and classified technology or items to unapproved foreign countries or foreign nationals. In practice, the how, when and where these regulations are triggered is much more muddy. This article hopes to provide some clarity in giving the practitioner a workable approach to dealing with the acquisition of these licenses.
The Legal Sources of Technology Protection and Security in the US
Two independent sets of regulations primarily control the export of sensitive technology to other countries, or their nationals, the Export Administration Regulations (EAR) 15 CFR Parts 730-772, and the International Traffic in Arms Regulations, (ITAR) 22 CFR Parts 120-130. These regulations are administered by two different agencies, the DOC and the DOS.
The general goal of both schemes is to prevent 'export' of controlled and classified technology or items to unapproved foreign countries or foreign nationals.1
The export of technology includes a "release" to a foreign national, which is broadly defined to include such things as mere availability of the technology for visual inspection by the foreign national or oral disclosure to him/her.2
Under the EAR, any release of technology or software subject to the EAR in a foreign country, or any release of technology or source code subject to the EAR to a foreign national generally constitutes an export.3 The release of technology or software is defined as "Visual inspection by foreign nationals of U.S.-origin equipment and facilities... Oral exchanges of information in the United States or abroad...The application to situations abroad of personal knowledge or technical experience acquired in the United States."4
Relative to foreign persons, "Export" under ITAR is defined as "Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad; or..... Disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad."5 Given the breadth of what may constitute an export by release, the implications for a company which operates numerous divisions or subsidiaries, some of which may involve implicated technology and some of which do not, are clear. If issues concerning internal physical, inter-division, inter-subsidiary, and computer system security are not addressed, and a compliance plan is not in place to address the risk of a foreign national in an uncontrolled area of the business coming into contact with a controlled part of the business and its data and equipment, or having discussions with co-employees over controlled technology or articles, then an employer may be deemed at substantial risk for allowing a 'release' to a foreign national even though the foreign national does not work directly on controlled articles or technology. The immigration implications of this possible "export" are discussed later, but include the risk of denial of permission to hire a foreign national, and delay or refusal of a visa for the foreign national. Apart from the immigration implications, a compliance program which identifies the U.S. and international conventions applicable to the company's business, including export regulations, and which applies those requirements to the operations of the business in a meaningful way at all pertinent levels will be dramatically better positioned to make strategic planning decisions with confidence, avoid disruption of its business, and make disclosures and credibly respond to government inquiries than a business without such a plan.
There are additional regulations and statutes which authorize other departments of the U.S. government to exercise control over much broader issues, but which also include control over trade involving protected or restricted articles and technologies. These are typically implicated in immigration situations when the visa candidate is from a country under embargo or sanctions, or involves a specifically prohibited technology or article. Examples of such regulations are those enforced by the Treasury Department's Office of Foreign Asset Control at 31 CFR Part 500, and regulations promulgated pursuant to the President's authority under the International Emergency Economic Powers Act, 50 USC sec. 1701 et seq., or relative to embargoes imposed before 1977 under the Trading with the Enemy Act, 50 USC app. Sections 1-44. Additional agencies exercising authority over specific sorts of exports are listed in supplement 3 to 15 CFR Part 730, and include the Drug Enforcement Administration (DEA), the Food and Drug Administration (FDA), the Department of Interior (DOI), the Department of Energy (DOE) and the Nuclear Regulatory Commission (NRC). DEA regulates certain chemicals and drug precursors.
The Scope of the EAR and ITAR
The scope of the articles and technologies covered by the two schemes is defined in the EAR by the Commercial Control List and Commerce Country Chart, 15 CFR Parts 774 and 738, and in ITAR by U.S. Munitions List (USML), at 22 CFR Part 121. Technology in the public domain, or which is publicly available, is not covered by the USML or the EAR6. Broadly speaking, the EAR concern themselves with "dual-use" technologies (those technologies having both civilian and military applications). In contrast, ITAR focuses on dedicated military articles and technology. Generally speaking, characteristics of the EAR make it less rigid than ITAR, but an analysis of coverage, control, and licensing requirements ought be performed for every NIV foreign national whose job requirements present the potential of a deemed export of controlled technology. A detailed step by step procedure for evaluating a given technology or item under the EAR is provided at 15 CFR Part 732. The Office of Defense Trade Control (ODTC) retains the authority to determine USML coverage of an article or technology, and the ITAR provide no use instructions so far as determining USML coverage. The USML is, however, much shorter, less complex and easier to survey for potential coverage than the EAR.
It is possible to obtain an advisory opinion concerning the applicability of the EARs to specific technology and whether a license is required.7 Such advisory opinions are not binding on DOC.8 Under ITAR an advisory opinion regarding technology coverage and the likelihood of a grant of a Foreign National Employment License (FNEL) or Technology Assistance Agreement (TAA) is also obtainable, but it is also noted that "These opinions are not binding on the Department of State and are revocable".9
Classification of Articles/Technology under ITAR
ODTC makes the determination whether a given article or service is covered by the USML, and thus, whether a license is required for export of the article or service to a foreign country or foreign national.10 A person need not be registered with the ODTC in order to obtain classification of a specific article or service. If the article or service is deemed to be covered by the USML, then the exporter, manufacturer or furnisher of services must register with ODTC. Id. Registration must occur before ODTC will consider an application for a TAA involving a foreign national, or a FNEL. Appeal of the decision of the ODTC is available within the Office of the Center for Defense Trade.11 Disputes over governmental jurisdiction over an article or service are resolved among the DOS, DOD and DOC according to "established procedures".12 The USML is extensive and captures virtually any technology which has been productively applied to a lethal or defensive military purpose.
Classification of Articles/Technology under the EAR
Classification of goods as to their coverage or control under the EAR is not exclusively relegated to DOC in the same manner that determination of coverage by the USML is by DOS. Thus, private business is encouraged to determine for itself whether or not its product or technology is subject to or controlled by the EAR such that an export license is required for lawful export of the product or technology.13 Companies that make the determination are, however, responsible for any mistake or misclassification they might make. Even if a license is not required, controlled items are still subject to the applicable export clearance procedures and recordkeeping requirements contained in 15 CFR Parts 758 and 762, respectively.
The EAR provide detailed instructions for evaluating whether a given article or technology is subject to and controlled by the scheme.14 The analysis path for a given article or technology is complex. Supplement No. 2 to 15 CFR part 732 provides the elements of an eight step analysis to determine whether a given article or technology is subject to the EAR. Every step is guided by extensive regulatory provisions. Once it is determined that an article or technology is subject to the EAR, one must next determine whether the article or technology is controlled or "classified" by the EAR- Supplement No. 1 to 15 CFR part 732 provides a decision tree for evaluating whether an article or technology is controlled, requires a license for a given country, and is covered by license exceptions. At each step of the way extensive and complex regulations govern the analysis. A short enumeration of a few possible outcomes under this scheme provides a glimpse into the complexity of the analysis. For example, articles and or technology may be subject to the EAR, but not controlled, thus requiring no export license unless there is an embargo on the destination or end user, or other prohibited aspect of the transaction. Technology or an article may be controlled but subject to a license exception, obviating the need for an export license. An article or technology subject to and controlled by the EAR may require a license for export to every country, or only some, or may be totally prohibited. Certain articles and technologies are much more sensitive and dramatically increase license scrutiny, such as items and technology linked to nuclear uses, or missiles or encryption technology. The same is true for destination countries, where traditional western European U.S. allies, and modern US allies suffer fewer relative restrictions across all technology categories and sub-groups than do others. End uses, and users, also play an important part in the analysis, as does the question of whether articles, technology or services pertaining to, for example, wholly foreign origin items involve a "proliferation activity."
The EAR also contain the requirements of the Chemical Weapons Convention at 15 CFR Part 745. This portion of the EAR is an additional sub-scheme that must be followed by exporters of chemicals covered by the convention, as listed in 15 CFR Part 745 Supplement No. 1. Advance notification of export and end-use certificate reporting are required by the convention. Covered items, thus, have an additional layer of regulatory scrutiny.
Permission for Foreign Nationals to Receive Controlled Technology or Articles
Both the EAR and ITAR focus on technology released to foreign nationals as that definition is regulated by the INA anti-discrimination statute.15 The practical effect is that a company cannot lawfully employ a covered person in a position where the release of controlled technology is intended, or likely, without prior receipt of the export license/FNEL/TAA relative to the employment. This definition means, generally, that NIV holders are subject to the licensing requirements of EAR and ITAR. Release of such technology to a foreign national in the United States is referred to as a "deemed export."16
Neither an export license nor a FNEL/TAA is required, however, for release of controlled, but unclassified technology where the employee is a lawful permanent resident (LPR) of the US or a "protected person" under the anti-discrimination provisions of the INA, e.g., LPRs, refugees, asylees.17 Such persons are expressly excluded from coverage under both schemes. Citizenship discrimination may occur, however, where authorized by statute or government contract. LPRs may, therefore, be treated as foreign nationals where classified technology is involved.18 Separate ITAR rules apply to classified articles and technology.19
Release or "deemed export" of controlled items or technologies to NIV holders is permitted where an export license is granted by the Bureau of Industry and Security for the EAR covered technology and items, or a TAA or FNEL is issued by the Directorate of Defense Trade Controls, an office of the Department of State, relative to technology or items covered by ITAR.20 The grant or refusal of an export license, or TAA/FNEL, are distinctly separate activities from visa adjudication.
Severe civil and criminal penalties apply to violations.21
The lead time reported by DOC and DOS for export license or FNEL/TAA action is 90 days or more for BIS, and 60 days or more for DOS.22
Both regulatory schemes require information regarding the immigration status of the foreign national employee under consideration in order to consider the application/request for an export license or FNEL/TAA, and link the period of the employment approval, if granted, to the duration of the foreign national's immigration status. Neither scheme seems to contemplate the prospect that a prospective foreign national employee may not yet have received a visa. Bureau of Export Administration, Office of Chemical and Biological Controls and Treaty Compliance, Guidelines for Preparing Export License Applications Involving Foreign Nationals, pg. 2 (block 19) (supplied through BIS at http://www.bis.doc.gov/licensing/applying4lic.htm ), U.S. Department of State, Directorate of Defense Trade Controls, Guidelines for Completion of a Form DSP-5 Application, Request for Permanent Export of Unclassified Defense Articles and Related Unclassified Technical Data, pp. 11-12 (supplied through DOS at http://pmdtc.org/docs/DSP_5_guidelines.pdf ) Others have recommended, however, "prophylactic" application for the export license or FNEL/TAA for presentation with the visa application.23
Technology Protection and Immigration
Notwithstanding CIS approval of non-immigrant or immigrant status for foreign national alien, all temporary visitors and permanent residents must be admissible in order to receive their NIV or IV. Where the Department of Homeland Security/ Customs and Border Protection, or Consular Officer (conoff) have reasonable grounds to believe that an alien seeks to enter the U.S. to engage, in any way or to any extent, in the violation or evasion of laws prohibiting the export of goods, technology or sensitive information, the foreign national may be deemed inadmissible and refused a visa or entry.24 The discretion of the DOS/conoff is very broad in determining inadmissibility for purposes of visa adjudication, and regarding factual conclusions virtually inalterable.25
To facilitate identification of "inadmissible" aliens under this basis for inadmissibility, DOS promulgated a Technology Alert List (TAL) for use by conoffs which is so broad that it covers almost any modern technical field. Where a conoff believes, and this may amount to no more than intuitive suspicion, that a controlled or classified technology is implicated, the visa-seeking foreign national may be subjected to extensive delay- up to 3 months or more- while a background check known as a "Mantis" inquiry is performed on the individual. The quick version of a Mantis inquiry is called an "Eagle Mantis", and allows completion of the visa adjudication after 10 days. The slow version, which requires express DOS authorization of the individual, is called "Donkey Mantis" and is typically reported to require about 90 days. For some countries (eg, Cuba) though, the Donkey Mantis has been reported to have taken as long as a year. Though typically regarded as a U.S. ally, even Israel is identified by the U.S. as a country where technology proliferation is a concern, thus, no quick resolution of a technology implicating visa application should be expected as to its citizens.26
Since it is only over the last several years that inadmissibility under INA 212(a)(3)(A) (relative to evasion of technology protection rules) has become a significant issue for conoffs, there is little law or guidance available on how to satisfy DOS/conoffs that a NIV or IV candidate does not seek to enter the U.S. in order to evade U.S. technology protection laws once technology security issues are implicated under the TAL. Commentators have observed that the seminal DOS memo regarding TAL use fails to provide conoffs and counsel with clear direction concerning use of the list, and that DOS guidelines signal a bureaucratic shift toward obtaining checks in all but the most obvious cases in order to err on the side of caution.27
There are some hints about how to improve the chances of visa approval when sensitive technology is implicated. The DOS guidance to conoffs regarding use of the TAL directs them to determine whether the applicant intends to engage in 'advanced' research or studies or business related to the critical fields list, and whether the issues of inadmissibility under INA 212(a)(3)(a) are possibly implicated and to seek as much detail as possible concerning the applicant's background, proposed activities, travel plans, current and prospective employment positions, the addresses and contact information for his U.S. employer/host, points of contact, who is funding the travel, details regarding the specific technology involved, where the applicant will go after the U.S. admission, and how the applicant will use his technological knowledge.28
Conoffs are urged to insist on documentation of these things, and others, such as complete resumes, publication lists, project descriptions, and corporate reports. The guidance further urges the referral of cases for Donkey Mantis or Eagle Mantis review. Even though the conoffs need not instigate such reviews in every technology case, " conoffs should use caution in adjudicating all such cases. Only when conoffs believe (3)(a) clearly does not apply should the case be processed to conclusion without seeking the department's opinion."29
Where possible, visa applicants should also supply documentation that the technology is in the public domain, or is found in regularly taught academic courses. The foreign and U.S. employers, and the applicant, should be alerted to the prospect of detailed inquiries from the consular post. These inquires could include direct questioning of the U.S. employer concerning its compliance with export control laws.30 An employer's credibility respecting compliance with technology protection regulations may be enhanced where the employment terms include basic conditions often included in an export license. The employer's ability to demonstrate and document to the DOS that it has a regulatory compliance plan addressing the numerous practical issues in avoiding violations of U.S. export control and technology protection laws is crucial. An example is the typical license condition requiring written disclosure of all additional license conditions to the foreign national, including the foreign national's duty and affirmation not to disclose, transfer or re-export controlled technology. Additional conditions of this sort regularly require foreign national affirmation of receipt, understanding of and agreement to abide by the regulatory compliance plan of the employer and acknowledgement of firewalls erected in execution of the compliance plan relative to other activities of the business not covered by the specific export license or FNEL /TAA applicable to the foreign national.31 The employer's ability to demonstrate in the foreign national's job description that compliance with all company technology control laws and licenses (where applicable), and all company compliance programs are conditions for the job, along with eligibility for a license (where applicable) only serve to reinforce the employer's credibility, and that of its job candidate. Making eligibility for employment licensing under applicable regulations a published condition of employment also diffuses any suggestion of discriminatory intent when the question of national origin necessarily arises for such a candidate.
According to a letter promulgated by the U.S. Embassy in Tel Aviv, Israel, certain measures should be taken by persons applying for a visa to travel to the U.S. on sensitive scientific or technological business in order to facilitate the evaluation by the DOS/conoff of the effect of technology protection regulations on the visa application, and thus, adjudication of the visa application. Instructions are given specifically for aliens whose U.S. employer is directly in the service of a U.S. government contract (processing time will probably be normal), and for aliens whose employers have had U.S. government contracts in the past (processing may be delayed). Notably, aliens seeking to enter the U.S. for business on a sensitive scientific or technological topic with a company that has no previous contractual relationship with the U.S. government are advised they "will definitely require additional administrative processing under U.S. government regulations". This processing may take from 2-4 months. Such applicants are advised that "As always, the more information that can be provided, the sooner the visa can be adjudicated." No details are provided in the letter concerning the sort of information which would speed the process.
The Tel Aviv Embassy has also posted a web page addressing "...All Applicants with a Technical Background who are Requesting Work or Study Visas".32 This offers more specific instructions for establishing 'admissibility' where the EAR and ITAR apply. On this posting they specifically call for the production at visa processing of:
1. Letters, in English, from the current and prospective U.S. employer or host,
2. Where relevant, a copy of the U.S. government contract being served by the applicant's work or visit to the U.S., or the Technical Assistance Agreement applicable to the work or visit,
3. Detailed and specific technical information concerning the work/visit,
4. Detailed information from the U.S. employer/host, regarding the purpose of the visit, the nature of the project and specific subject areas to be addressed, the dates and locations of meetings/activities, etc., and the contact name and phone numbers of the U.S. participants.
The posting also suggests that where the applicant is traveling in service of an active contract or subcontract between the applicant's employer/host and the U.S. government that before the visa interview a confirmation letter be obtained from the Defense Contract Management Agency at 09 960 1234. Applicants are advised that even with this information the adjudication could take up to 3 months, and that non-refundable airline tickets should not be purchased until after receipt of the visa.
In summary, although some urge filing a "prophylactic" application for an export license FNEL/TAA for foreign nationals so that the approval may be presented at the time of visa application, there appears to be no certain means of obtaining a binding opinion regarding issuance of an export license or FNEL/TAA so that an employer might avoid the cost of immigration filings for a foreign national as to whom the export license/FNEL would be denied. Petitions to CIS for immigrant or non-immigrant approvals are, thus, totally at the employer's risk for later visa delay or refusal based on security inadmissibility grounds, and where NIV holders are concerned, later denial of an export license or FNEL/TAA. If classified technology is involved, then IV applicants are subject to ITAR licensing requirements equally susceptible to refusal or revocation.
1. 15 CFR 734.2(b)(2)(ii) and 736.1,2: 22 CFR 120.
2. 15 CFR 734.2(b)(2) and (3), 22 CFR 120.17(4).
3. 15 CFR 734.2(b)(2).
4. 15 CFR 734.2(b)(3)(i-iii).
5. 22 CFR 120.17a (4-5).
6. 15 CFR 734, 22 CFR 120.10, 11.
7. 15 CFR 734.6.
8. 15 CFR 748.3.
9. 22 CFR 126.9.
10. 22 CFR 120.4.
11. 22 CFR 120.4(g).
12. 22 CFR 120.4(f).
13. 15 CFR 730.8.
14. 15 CFR part 732, and supplements 1 and 2 to part 732.
15. 8 USC 1324b(a)(3)). 15 CFR 734.2, 22 CFR 120.16.
16. Debusk and Owens, Non-military Technology: for Foreign Nationals, Immigration Law Today, Sept/Oct 2003, pg. 18. (hereafter "Non-military Technology").
17. 8 U.S.C. 1324b(a)(3); 15 CFR 15 CFR 734.2, http://www.bis.coc.gov/deemedexports/deemed exportsfaqs.html, question 5, 22 CFR 20.16.
18. INA sec. 274B(a)(2)(C), 8 U.S.C. sec. 1324b(a)(2)(C).
19. 22 CFR 125.3,7.
20. 15 CFR 736.1,2, 22 CFR 125.1, 2.
21. 15 CFR 764.3, 22 CFR 120.27 (citing 12 separate US criminal statutes).
22. Non-military Technology, supra 16, at 20.
23. Debusk and Owens, Non-military Technology: for Foreign Nationals, pp. 16, 22; See also, Walsh, The Technology Alert List, Visas Mantis and Export Control: Frequently Asked Questions, Immigration Briefings August 2004, pg. 6.
24. INA 212(a)(3)(A), 8 USC 1182 (a)(3)(A).
25. (Kurzban, Immigration Law Sourcebook, 9th Ed., 2004 p. 653 (no judicial review, limited access to reconsideration of denial or its legal basis).
26. Debusk and Owens, Non-military Technology: for Foreign Nationals, pp. 20-22; Walsh, The Technology Alert List, Visas Mantis and Export Control: Frequently Asked Questions, pg. 14.
27. Id., See supra note 26, pg. 5.
28. State Dept. Updates Guidance on Technology Alert Checks, March 4, 2003 pgs. 3-4.
29. Id., pgs. 3-4, emphasis added.
30. Id., See supra note 26, pg. 6.
31. Peters, et al, Foreign Nationals in U.S. Technology Programs: Complying with Immigration , Export Control, Industrial Security and other Requirements, Immigration Briefings, October 2000, p. 13.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.