H1-B Deemed Export Certification
Requirements and workflow related to H1-B Export Certification.
The Department of Homeland Security's US Citizenship and Immigration Services (USCIS) now requires all employers to certify that an H1-B beneficiary does or does not require an export license as a condition of their employment.
The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) require US citizens to seek and receive US Government approval before releasing regulated technology or technical data identified on US export control lists to foreign nationals in the US. Under both the EAR and ITAR, the release of regulated export control-listed technology or technical data to foreign nationals in the US is deemed to be an export to that person’s country or countries of nationality. Significant civil and criminal penalties apply to the unauthorized release of regulated export control-listed technology or technical data to foreign nationals in the US.
Regulated export controlled technology (regulated technology) is generally defined as specific unpublished technical information necessary for the "development," "production," or "use" of items or software on US export control lists. Regulated technology includes information released through giving technical assistance to a person or providing technical data. Regulated technology and technical data can take the form of unpublished software source code, instructions, blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, and technical manuals. It also includes technical information about regulated technology that may be communicated in meetings, emails, and telephone conversations, or through visual observation.
Regulated export controlled technology and technical data does NOT include technical information or software code that results from Stanford research. The informational products of Stanford’s fundamental research are treated as published as they are intended to be shared broadly – thus they lie outside the scope of US technology export controls and are not regulated. In almost all instances, Stanford’s exposure to regulated export control-listed technologies occurs when a Stanford sponsor or a third party – a company or a government agency, for example – asks Stanford personnel to accept proprietary, disclosure-restricted, or export control-marked technical information, materials, or software code. A foreign national's use of regulated export control-listed items or software does not require US Government approval unless the third party-supplied item or software is ITAR-listed or if the third party discloses regulated development, production, or use technology (click on the "Definitions" section to the upper right for an explanation of italicized terms).
H1-B Deemed Export Questionnaire
Stanford's Export Control Office has collaborated with the Bechtel International Center to create an H1-B Deemed Export Questionnaire to assess export licensing requirements. The H1-B Deemed Export Questionnaire is an integral element of Bechtel's H1-B Employment Visa Workflow application process. The Questionnaire is accessed from within the electronic workflow module and appears as a discrete tab entitled "Export Control".
The H1-B workflow process for export control is described at Section 3.6.3 and Section 6 of Bechtel's H1-B Process Overview. As Bechtel oversees the H1-B workflow, all workflow process questions should be addressed to Bechtel H1-B staff. Stanford's Export Control Officer is available to provide export control technology assessments and to provide guidance on Questionnaire content.
The Questionnaire must:
- Be completed and submitted from within the H1-B workflow; and
- Be completed and submitted by the applicant’s Principal Investigator or Faculty Supervisor.
All research-related positions should have a responsible Principal Investigator or Faculty Supervisor. For non research-related positions, such as those within Athletics or IT Services for which the applicant does not have a responsible PI or Faculty Supervisor, the Questionnaire must be completed by the department's Senior Human Resource Manager. Completion and submission of the H1-B Deemed Export Questionnaire cannot be delegated.
In addition, the applicant's Principal Investigator or Faculty Supervisor, or when applicable as described in the preceding paragraph, the unit's Senior Human Resource Manager, must fulfill a one-time STARS course requirement by enrolling in and completing ORA-1130 "Export Controls, an Overview." Course completion must occur prior to Questionnaire submission. H1-B visa applications will not be submitted to the USCIS until either the responsible Principal Investigator, Faculty Supervisor or Senior Human Resource Manager has completed ORA-1130 once.