Q: Why would export controls apply to foreign national staff, interns, and visitors at the Lab?
A: Under U.S. export regulations, transfers of technical data and software to foreign nationals in the U.S. are considered “exports” of the technology to their home country. These are also called “deemed exports ”. Depending on the technology and the home country, an export license from the federal government may be required prior to providing access.
Q: When might you have a deemed export problem?
A: Sharing technical data or software which is not publicly available could be deemed “exported” if shared with foreign nationals.
Q: Do you work with industry, other DOE labs, or government agencies who provide technical data or software subject to confidentiality (NDA) or access restrictions?
A: If the answer is yes, some of your work, labs, or networks may be off-limits to foreign nationals. See Section 1.A for more information.
Hiring Foreign National Laboratory Staff and Interns
Depending on your division and the position description, the new hire may be exposed to export controlled information as a function of his/her job (a good example is IT administrators, who have access to all files in a given network/system). If your activity involves, or may involve, access to confidential/sensitive/proprietary technical data or software, then you need to conduct an export review (see checklist directly below) of the position to determine if an export license would be necessary to hire a foreign national. Depending on the types of technology (EAR, ITAR, NRC, etc.) involved, certain nationalities may be expressly prohibited while other nationalities would not require a license. Having this information on export control requirements would inform your recruitment process.
Note: With respect to the recruitment of individuals whose positions require compliance with federal export control access and/or use restrictions, such recruitment may require that only U.S. Persons (as defined by and in the U.S. export control regulations) perform the responsibilities and functions being recruited for.
Export Review Checklist for all Foreign National Hires:
- Would this person have IT administrator responsibilities and/or access?
- Does the research activity/project restrict or prohibit the participation of foreign persons?
- Does the research activity/project require DOE, sponsor, or other approvals prior to publication or release of research data or research results?
- Would this person be provided access (regardless of whether or not access to such commodities or technology are within the scope of their duties) to equipment, materials, software, and/or technical data in any form specifically designed or developed for military or space applications?
- Would this person be provided access (regardless of whether or not access to such commodities or technology are within the scope of their duties) to any of the following:
- Technical information that has been stamped Export Controlled, Official Use Only (OUO), Controlled Unclassified Information (CUI), or Sensitive But Unclassified (SBU);
- Proprietary (to sponsor or third-party) technology for the development of cryptography;
- Proprietary source code of any kind (this includes licensed software but not OSS);
- Nonpublic equipment user manuals/documentation, especially those that contain information on repair, overhaul, or refurbishment of equipment; or
- Proprietary, confidential, sensitive, or any information* subject to nondisclosure agreements, of a technical nature in the science, technology, or engineering fields.
*Exceptions: Such information is provided to LBNL: 1) under a non-disclosure agreement that explicitly prohibits export-controlled information, materials, or software; 2) under an RFP that explicitly prohibits export controlled information, materials, or software in any response; or 3) as part of proposal documentation that, notwithstanding its designation as “proprietary or confidential,” does not in fact contain any technical data that is not already published or otherwise publicly available.
If you answered “Yes” to any of the five questions, contact [email protected] for assistance in determining if an export license is necessary to hire foreign nationals to this position.
H-1B Visa Holders Only
Deemed Export License Exception for “Bona Fide Full Time Regular Employees”
Under EAR 740.13(f), release of 'technology' and source code in the U.S. by U.S. universities to their bona fide and full time regular employees is authorized provided that:
The employee’s permanent residence throughout the period of employment is in the U.S.;
The employee is not a national of a destination listed in Country Group D:5 (see Supplement No. 1 to Part 740 of the EAR);
The university informs the individual in writing that the “technology” or source code may not be transferred to other foreign nationals without prior U.S. Government authorization.
This exception is not applied to provide access to technologies controlled for Encryption (EI) or Missile Technology (MT) reasons. NOTE: Many technologies are controlled for either EI or MT reasons so careful review of all accessed technologies is required prior to considering use of this exception.
For purposes of both the EAR and ITAR exceptions (see footnote 1), the term “regular employee” means an individual permanently and directly employed by the university. Individuals under a long-term contractual relationship with the university and working at the university’s facilities may qualify under the EAR, provided that additional requirements are met (see 740.13(f)(3)(ii)). Currently, only H-1B visa holders appear to meet the exception criteria for a “bona fide and full time regular employee”. The term does not include student employees (like graduate students) regardless of the number of hours they may work.
NOTE: The obligation not to transfer technology extends beyond the tenure of employment at the University.
Documentation and Certification Requirement
If an LBNL division wishes to use this exception for a qualified foreign national employee, the division must document the disclosure of technical data under the exemption by completing a Bona Fide Employee Exception Certification, which requires both Division Director and Lab Export Control approvals.
Existing Research Staff
The same concerns regarding deemed exports apply to existing foreign national staff. If your activity involves, or may involve, access to confidential/sensitive/proprietary technical data or software, then you need to conduct an export review (see checklist above) of each position held by a foreign national to determine if an export license would be necessary.
See Also: Section 1F. Foreign Visitors
1. Under ITAR § 125.4(b)(10), the ITAR allows universities to disclose unclassified technical data in the U.S. to a foreign person who is the university’s bona fide and full time regular employee. The exemption is available only if:
- The employee’s permanent abode throughout the period of employment is in the United States;
- The employee is not a national of a country to which exports are prohibited pursuant to ITAR § 126.1
- The university informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of DDTC;