Export Controls: H1-B Deemed Export Certification

Introduction

Requirements and workflow related to H1-B Export Certification.

Employer Requirements

The Department of Homeland Security's US Citizenship and Immigration Services (USCIS) now requires all employers to assess whether an export license must be obtained prior to hiring any H1-B employee, and to certify to those findings.

This certification requirement implements laws presently set forth in both the Export Administration Regulations (EAR – civil applications) and the International Traffic in Arms Regulations (ITAR – defense applications).  These laws mandate that US Persons, including universities, seek and receive US Government approval before releasing export controlled technology identified on US export control lists to foreign nationals in the US. Under both the EAR and ITAR, the transfer of export controlled technology to a foreign national in the US is considered an export, specifically a “deemed export”, to the foreign national’s country or countries of citizenship.  Significant civil and criminal penalties apply to the unauthorized release of export controlled technology on US export control lists to foreign nationals in the US.

Export Controlled Technology

First, let’s start with what export controlled technology is not.  Export controlled technology does NOT include technical information or software code that results from Stanford research.  The informational products of Stanford’s fundamental research are treated as public domain as they are intended to be shared broadly – and public domain information is not regulated by US export control law.

So what is export controlled technology?  Export controlled technology is generally defined as unpublished technical information on US export control lists that is necessary for developing, producing or using those items or software.  Confidential financial, demographic or human subjects data, for example, is not considered export controlled technology.  Export controlled technology can take the form of unpublished software source code, instructions, blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, and technical manuals.

Deemed exports include transfers of export controlled technology that may be communicated in meetings, emails, and telephone conversations, or through visual observation.  A deemed export can occur not only when export controlled technology is shared with a foreign national, but also when US Persons provide technical assistance on the development, production or use of export controlled technology to a foreign national in the US or abroad.

As you might imagine, it is rare for deemed exports to take place at Stanford in the humanities or social sciences. In almost all instances, Stanford’s exposure to export controlled technologies occurs predominantly in science and engineering when a Stanford sponsor or a third party – a government agency or collaborator, for example – asks Stanford to accept technical information or software code marked or known to be export controlled.

Importantly, a foreign national's use of export controlled items or software generally does not require an export license unless a third party-supplied item or software is ITAR-listed or if a third party discloses export controlled 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 Dean of Research Office has created an H1-B Deemed Export Questionnaire to assess an H1-B beneficiary’s 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 tab entitled "Export Control". 

The H1-B workflow process for export control is described at Section 1 and Section 4 of Bechtel's H1-B Workflow Instructions. As Bechtel oversees the H1-B workflow, all workflow process questions should be addressed to Bechtel H1-B staff. Stanford's Export Control Office is available to provide export control technology assessments and to provide guidance on Questionnaire content.

Questionnaire Submission

The selection of the Export Control Questionnaire Respondent is restricted based on the Stanford Employment category that you choose. 

For Regular Staff and Bargaining Unit Employees, select from a list which includes HRM3s or HRM4s (HR managers at Level 3 or 4), SoM DFAs, or those who have been identified by DoR/UHR as being the Senior HR-associated administrator for their unit.  You can click on the magnifying glass next to the Export Control Respondent field (without entering a name) for a complete list of approvers.  You should select the appropriate person for your unit.  If you are unsure about whom to select, please contact staffexportcontrol@stanford.edu before submitting the transaction. 

For all other categories, the individual must be on a specific list comprising eligible Faculty, defined as University Tenure Line (UTL), Non-Tenure Line (NTL), and University Medical Line (UML) faculty, recalled Emeriti and those granted PI status by an approved waiver.  Individuals other than Stanford faculty defined above will not be granted Authority to complete and submit the Questionnaire.

If you enter information about a person who is not eligible, you will get a message ‘No matching values found’. If you click on the magnifying glass and do not enter any information but click Look Up, you will see the complete list of individuals who can be selected as Export Control Questionnaire Respondent. Please select one of these eligible persons from your department who is in a position to knowledgeably answer questions about the job.

The Export Control Questionnaire Respondent will only be able to approve the workflow after s/he has completed DOR-1130 (“Export Controls: An Overview”). This is a one time prerequisite and until this is done s/he will not be able to approve the transaction but will be restricted. If you select an individual who has not completed the training, an email will be sent to the Export Control Questionnaire Respondent informing him/her that the STARS course has to be taken.  You will be copied on this email. See below for the sample email:

Reminder: Required Training for Export Control Questionnaire Respondents

You have been identified as the ‘Export Control Questionnaire Respondent’ by department admin, XXXXXX who has initiated the Temporary Employment Visa transaction for H1B applicant XXXX.

 Our records indicate that you have yet to complete the required STARS export control training module ORA-1130.  ORA-1130 is a one-time prerequisite to your submission of the H1-B Export Control Questionnaire, which you will receive when the transaction routes to you. Since it appears you have not completed the training module, please do so to prevent delays in the processing and approval of the H1B visa. To enroll and complete the ORA-1130 online training in STARS Login to Axess https://axess.sahr.stanford.edu Click 'STARS' tab Search the course by course code 'ORA-1130' Click 'Enroll' and 'Launch' the course

If the STARS course ORA-1130 has still not been completed by the time the transaction is routed to the Export Control Questionnaire Respondent, s/he will be able to see the transaction in workflow but will be prevented from accessing it and will see the following pop up message:

Once the individual has taken this one time course, workflow will automatically grant him/her access.  Authority is generally granted within two hours.  However, if the person is a new hire or is changing jobs, the Dean of Research Office will manually grant that person access once the course has been completed.  In the latter instance, the Dean of Research Office will make every effort to grant authority that same business day.  However, depending on staff workload and availability, authority may take two to three business days.