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Export Controls and Immigration
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Background Exports of goods or services are subject to control by the U.S. government. Although many know this fact, few know the exact definition of an export or in what circumstances export controls are placed on exports, including providing information to a nonimmigrant employee. The following provides a brief overview of exports and export controls in the United States. What is an Export? The definition of an export is expansive. An export is any item transferred outside of the United States. An export may be any commodity, such as software, clothing, electronic circuit boards, design plans, or technical information. How an export is transferred (e.g. by airplane, e-mail, fax, or telephone) is not relevant. Nor is it relevant if an export is a transfer between U.S. and foreign offices of the same company. Knowledge can also be exported. Information shared with certain foreign nationals, even if they are in the United States, may be a “deemed export” and thus become subject to export controls. If a foreign national holds nonimmigrant status, the receipt of such information is an export. If a foreign national holds permanent residency (green card), refugee or asylum status within the United States, the receipt of such information is not an export. Allowing subjected foreign nationals access to information, even without explicitly sharing the information, is also an export. Examples of “deemed exports” may include a foreign national employee receiving an e-mail attachment containing engineering specifications for an electronic device, a foreign national participating in a training exercise where he or she is exposed to sensitive information, or even a visiting foreign national touring a manufacturing plan. What Exports are Subject to Control? All items and information in the United States are subject to export control unless: (1) it is publicly available technology or software (excluding encryption); or (2) it is artistic or non-technical in nature. For example, neither publicly available university research nor the latest Harry Potter book are subject to export control. Who Regulates Exports? The authority to regulate exports is fragmented across numerous agencies and departments within the federal government. However, the Commerce Department’s Bureau of Industry & Security (BIS) possesses authority over most exports. The Department of State’s Directorate of Defense Trade Control (DDTC) controls the export of military equipment and munitions and many other exports. Other agencies with export control authority include the Drug Enforcement Administration, the Fish & Wildlife Service, the Office of Foreign Assets Control, the U.S. Department of Energy, the Nuclear Regulatory Commission, and the Department of Agriculture. Despite this proliferation of agencies, only one agency will have authority over any one export. Export Control Procedure: What License is Required? All exports require at least a "general license." However, some exports are subject to more scrutiny. The first step is determining which agency has jurisdiction over the export. Each agency has its own rules and procedures. For example, the BIS categorize exports on its Commerce Control List (CCL), while the DDTC uses its own Munitions List. Once an export is categorized, the next step is determining the end-user of the export. Thus, an exporter is not only responsible for who (the country and industry) first receives the export, but also the subsequent receivers of the export. Once an export is categorized, its end-user identified, and its path of travel from the United States to the end-user determined, the appropriate agency can determine if a license is required. The agencies can help exporters determine what controls are necessary for certain exports. For more specific information visit the Bureau of Industry & Security at http://www.bis.doc.gov or the Directorate of Defense Trade Controls at http://www.pmdtc.org. Enforcement and Penalties The enforcement of export controls is expected to increase in the near future. The Department of Homeland Security has begun sharing immigration databases with certain export control agencies. Additionally, the General Accounting Office recently issued a critical report ( GAO-02-972) on the Department of Commerce, suggesting the creation of a government-wide risk-based monitoring program of compliance with export controls. Failure to obey export control laws may result in hefty penalties. BIS regulations allow for civil fines of up to $10,000 per violation, while DDTC regulations allow for civil fines of up to $500,000 per violation. Criminal prosecution is also possible. Conclusion Just as companies selling goods or services across international lines must comply with U.S. export control laws, so must companies who employ foreign nationals or let them into their facilities, even if their product or service stays within the United States. Failure to adhere to export control laws may result in eye-popping consequences. For more information concerning export controls and U.S. immigration law, contact Steve Yale-Loehr, Hilary Fraser, Rosanne Mayer, or Carolyn Lee at Miller Mayer, LLP. 202 East State Street, 7th Floor, Ithaca, NY 14850; Phone: (607) 273-4200; Email: immig@millermayer.com. Updated 8/2003
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