#ear license

[exportcontrol-blog]

The Immigration Practitioner's Guide to U.S. Export Control Regulations: A. Guide to ITAR/EAR Compliance Certification: Practical USCIS Compliance Tips

1) Petitioners that are ITAR/EAR certified (hold such licenses) should already have a comprehensive ITAR/EAR compliance program in place, one which now needs to be modified to include additional USCIS attestation requirements.  A copy of the applicable license and associated certifications should be kept with the beneficiary’s H-1B compliance file, ready for possible inspection by USCIS/ICE auditors.  

2) Petitioners that may be subcontractors to defense contractors  (ITAR/EAR license holders) must review their contracts to determine whether there is such a clause, and are advised to make note in their H-1B Compliance file that such a document search was performed, or that one is deemed not necessary.

3) Petitioners that may be deemed to be subject to ITAR/EAR because they have foreign parents, affiliates or subsidiaries that produce or export or transfer US origin military goods or services must register for ITAR/EAR certification.  Same compliance procedure as 1) above will apply.

            Those companies that are licensed or may be subject to ITAR/EAR certification or OFAC compliance requirements are advised to communicate with Immigration counsel without delay.

Readers should note that the application of ITAR compliance and ITAR certification requirements is spreading despite a lack of specificity in US Commerce Dept, and US Dept. of State rules about what these requirements actually entail.  Nowhere in the International Traffic in Arms Regulations (ITAR) is it spelled out what “ITAR compliant” means.  As is the case with agency implementation of many federal regulations, different staff members of the Directorate of Defense Trade Controls (DDTC) and the Commerce Bureau of Industry and Security (BIS) will make slightly different interpretations.  The Treasury Department Office of Foreign Assets Control (OFAC) imposes yet a third set of compliance obligations.

Nonetheless, a generally safe definition of ITAR compliant is as follows:

For a company involved in the manufacture, sale or distribution of goods or services covered under the United States Munitions List (USML) or a component supplier to goods covered under USML, the contractual stipulation or requirement of being  “ITAR compliant” means that the company must be registered with the State Department’s Directorate of Defense Trade Controls (DDTC).  These requirements are laid out on the DDTC’s web site http://pmddtc.state.gov/registration/index.html.  Any company that must be compliant must understand and abide by the ITAR as it applies to any relevant USML linked goods or services.  Any company that becomes a USML prime exporter or subcontractor must now register with DDTC and certify that they operate in accordance with the ITAR.

To become ITAR COMPLIANT, a USML supplier needs to register with DDTC and know what is required of them to be in compliance with the ITAR and self-certify that they possess this knowledge. 

[exportcontrol-blog]

INTRODUCTION: Exceptions and Exclusions to ITAR/EAR License

 There are limited exceptions on export and transfer of certain types of knowledge, data, and technology, such as for universities that teach foreign students fundamental research techniques or scientific knowledge that is in the public domain.

 Note: however, there are no expressed exclusions that allow foreign persons to use controlled equipment or software without a license.   Some universities rely upon the Fundamental Research exclusion [see below] on the ground that using equipment is part and parcel of conducting fundamental research and/or the Education exclusion when the program of instruction requires using such software or equipment, but it is unlikely that such exclusions will extend more generally to commercial software development firms or other commercial concerns.  

While this is not the place for an in-depth discussion of these issues, I-129 filers must now be aware of the general outlines of export restrictions in order to make a baseline determination of whether they may be subject to ITAR/EAR licensing requirements, how and what to document for compliance, and if necessary, so as to be better prepared to approach the license application process.

Also, of concern to all filers of Form I-129, the State Department enforces its jurisdiction over export controls through the Diplomatic Security Service (DSS), the same unit that investigates immigration fraud and crimes, while the Commerce Department polices export restrictions through Immigration and Customs Enforcement (ICE), which investigates all manner of immigration violations and related criminal activities.  Audits of an immigration petitioner’s records or interview of its employees may reveal violations directly to the agencies charged with enforcement.