Without realizing it, a substantial number of employers commit serious criminal offenses every day by failing to obtain individual export licenses for their foreign workers. For purposes of this article, the term “foreign worker” means someone who is not a United States citizen or lawful permanent resident alien (“green card” holder). That the foreign worker is in possession of a valid working visa (i.e., H-1B, E, L, O, etc.) is of no consequence. It is the responsibility of every employer to make certain that all foreign workers in they employ possess all required export licenses before they begin working.
The single most commonly misunderstood issue in this area is the “deemed export” rule. Simply put, a foreign worker may not be given access to any technology that itself is subject to export control. Even if the end product itself may be freely exported without restriction, if the technology involved in its production is restricted, an “export” is deemed to take place when the foreign worker is exposed to that technology.
Three examples of deemed export include:
- Visual inspection of U.S.-origin technology by a foreign national;
- Oral exchange of information in the United States or abroad; or
- Application to situations abroad of personal knowledge or technical experience acquired in the United States.
Employers must bear in mind that a foreign worker who has access to restricted technology, irrespective of whether he or she actually views or uses it, requires an export license. Thus, a computer network administrator who has unrestricted access to all of the information on the network requires an export license if there is any restricted technology contained anywhere on the network.
