Employing Foreign Nationals

For Those on Non-Immigrant Worker Visa Applications: H-1B, H-1B1, L-1, O-1A

The United States Citizenship and Immigration Services (USCIS) is the government agency which oversees lawful immigration to the United States. As part of the I-129 petition process, USCIS requires employers to complete a “Deemed Export Attestation” which is a certification that either (1) a license is not required to release technology or technical data to a foreign person, or that (2) a license is required and the University will not release or otherwise provide access to controlled technology or technical data to the prospective employee until it has received an appropriate license or other authorization.

In order to determine if a license is required, review of the petitioner’s planned activities must be conducted by the export control officer prior to submitting the I-129 Petition. The I-129 petition is submitted to USCIS by the International Students and Scholars office (ISSS).

An “export” is not always a product, and most frequently is not. A “deemed export” occurs when controlled technology or information is released to a foreign national person located in the United States. This “release” of information can happen in many ways, such as teaching a foreign-born person (e.g., a postdoc or student) - who is here working in a lab and in the United States on a visa -how to use a machine, or how to do research with a particular biological agent. When controlled technology is released to a foreign national, that information is “deemed” to be an export to the country where the person is a resident or citizen. The concern is over how this information may be used and whether it could provide a risk to national security.

A foreign national or foreign person is anyone who is not a U.S. citizen, is not a lawful permanent resident of the U.S. (i.e., does not have a green card), or who does not have refugee or asylum status. The person doing research could be at any level: student, postdoc, faculty, visiting scholar, lab tech, departmental staff, and with any employment title.

To determine eligibility for project participation, each foreign person may need to have a determination made by the Export Control office. Deemed export review is specifically required prior to submitting a petition on for H-1B, H-1B1, L-1, and O-1A visa types. The review process is especially important, and may be more lengthy, if the country the researcher is from has sanctions and embargoes placed on it by the government of the United States. (See countries of concern)

Three different United States federal agencies mandate regulations on export control.

If an export control license is required, the Export Control Office is authorized to file the license application with the appropriate federal agency.

It may take months for a deemed export license application to receive government approval. The government may also reject the petition. Failure to obtain a required license may result in civil and criminal penalties if foreign national access to or participation in export controlled research is granted without the required license.

The University of Colorado utilizes the Deemed and Hand Carried module of the online software program called Visual Compliance to perform deemed export review. The hiring unit needs to complete an online Deemed Export worksheet through Visual Compliance. Upon completion, the worksheet is submitted for review based on an established workflow. Results are provided to ISSS and included on the I-129 petition.

For questions, or to request access the online system, contact Christine Ahearn at christine.ahearn@ucdenver.edu303-724-0245.‚Äč

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