Advisory Opinion on Deemed Export Licenses and Third Party Placements

The U.S. Department of Commerce has issued a formal advisory opinion on the applicability of the "deemed export" provisions of the Export Administration Regulations (EAR) where foreign worker provides services at a third party client site pursuant to a contract between a the petitioner and a third party client. 

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Hillary Hess, Director, Regulator Policy Division of the Department of Commerce has provided an opinion that in the above mentioned scenario though the staffing company has control over the employment of the foreign national but does not have control over technology or source code that is provided to the foreign national by the third party client, the third party client is required to obtain authorization for a deemed export that might occur when the third party client provides the foreign national with access to technology or source code subject to the EAR.

However, Hillary Hess cautions that the petitioning companies that it is better to also take an opinion from USCIS and ensure that its representations on USCIS Form I-129 (Petition for a Nonimmigrant Worker) are accurate.

See the formal advisory opinion here


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Lulaine @ RD Legal Funding said...

Immigration issues in general tend to get dicey if even a few things are out of order. The situation is ripe for exploitation of workers given the weakness in position they have. While they may go to authorities, there can be significant lag time between the complaint and actual action about it.

leXpeak - Author said...

You are right Lulaine, especially with the unprecedented 221g's issued by the Consulates, Labor Audits, RFE's, etc. It establishes the fact that the qualified workers are exploited, which is actually bad for US Economy