Immigration Guide: U.S. Export Control Regulations

The restrictions on access to USML items by Dual and Third Country National employees of a foreign person can cause significant difficulties because the current accepted definitions of Dual and Third Country Nationals do not reflect the definition of “US persons.” The Department of State defines Dual and Third Country Nationality as follows:

Third Country National: An individual holding nationality from a country or countries other than the country of the foreign signatory to the agreement; and

Dual National: Holds nationality from the country of a foreign signatory and one or more additional foreign countries.[84]

Although “nationality” is not defined under ITAR, it is accepted that the U.S. Government will take country of origin[85] and continued ties or allegiance to a country into account when determining Dual or Third Country Nationality.[86]

This means that a person who was born in the UK but is a U.S. permanent resident working in the U.S. for a U.S. company will be considered a U.S. person only (under the definition of “US person”). If, however, the same person emigrated to Canada, obtained Canadian citizenship and commenced employment with a Canadian company, they would be treated as a Canadian-UK Dual National for the purposes of any U.S. export authorization to which their employer was a party. If that person did not obtain Canadian citizenship but instead became a temporary or permanent Canadian resident, they would be treated as a UK Third Country National for the purposes of any U.S. export authorization to which their employer was a party.[28]

It is also possible for a person who was born in one country to become a Dual National for the purposes of ITAR without necessarily leaving their country of origin, simply by obtaining a foreign passport (thereby “holding nationality” from another country). This is frequently the case where the individual’s parent/s were born in a country that grants citizenship to children of its citizens, regardless of where the children were born, for example, a child born in Canada to parents who were born in the UK is able to obtain a UK passport (see British nationality law). Once they have done so, they become an Canadian-UK Dual National for the purposes of ITAR.

Restrictions on access to USML items by Dual and Third Country National employees of foreign persons essentially forces foreign persons to discriminate against their employees who do not meet the nationality criteria under an export authorization. Such discrimination may be illegal in some countries under anti-discrimination law (such as in Canada[87] and Australia[37]).

In addition, the prohibition on access by Dual and Third Country Nationals from countries proscribed under ITAR 126.1 can cause problems for countries with large immigrant populations from those countries (such as Canada and Australia, which both have large Overseas Chinese and Overseas Vietnamese immigrant populations: see immigration to Canada and immigration to Australia).[37]

The U.S. Government actively enforces restrictions on access to USML items by Dual and Third Country Nationals:

 Registration fees

The U.S. Department of State charges back fees to manufacturers who have failed to register previously.[77] Smaller exporters who may not have been aware of the requirement to register can potentially be charged crippling back fees when they first register.[78] Allegations have been put to the U.S. Department of State-industry advisory group, the Defense Trade Advisory Group, that charging back fees discourages some manufacturers from registration.[78]

Restrictions on foreign products

Restrictions on Retransfer of USML items can also cause difficulties where those items have been incorporated into a product manufactured by a foreign person. If the foreign person wants to Retransfer the product to another foreign person, it must obtain authorization from the U.S. Government before the Retransfer can take place.

It is open to the U.S. Government to refuse to authorize Retransfer of a foreign product that includes USML items:

in 2006, the U.S. Government refused to authorize the sale of C-295 transport and maritime patrol aircraft manufactured by the Spanish aircraft manufacturer, EADS-CASA, to Venezuela because the aircraft included US-origin avionics and engine components controlled under the USML. As a consequence, EADS-CASA was forced to cancel a €500M contract with Venezuela;[79] and

in 2006, Embraer of Brazil was also prevented from selling Super Tucano aircraft to Venezuela by the U.S..[80]

As a consequence of the blocking of these sales, Venezuela has subsequently purchased aircraft and other military hardware from Russia and Belarus.[81]

In 2010 the Halifax Class frigate will using as much non-American equipment as possible, including technology from Canada, Sweden, Germany, Netherlands and Israel. The International Traffic in Arms Regulations have also been blamed for the delay of the CH-148 Cyclone helicopter which is currently two years behind the original schedule.[82]

There is an open debate between the Department of State and the industries and academia regulated by ITAR concerning how harmful the regulatory restrictions are for U.S. businesses and higher education institutions. The Department of State insists that ITAR has limited effect and provides a security benefit to the nation that outweighs any impact that these sectors must bear. Every year, the Department of State can cite multiple arrests of ITAR violators by U.S. Immigration and Customs Enforcement agents and the FBI.[64] However, many companies and institutions within the affected areas argue that ITAR is stifling U.S. trade and science[citation needed] and that its restrictions encourage U.S. allies (such as Australia and the UK) to procure defense equipment from other sources that may not be interoperable with U.S. equipment.[65] Companies argue that ITAR is a significant trade barrier that acts as a substantial negative subsidy, weakening U.S. industries' ability to compete.[66] U.S. companies point to announcements in Europe by TAS (Thales Alenia Space) promoting their "ITAR-free" telecommunication satellites.[67] Higher education institutions argue that ITAR prevents the best international students from studying and contributing in the United States, and prevents cooperation on certain types of international scientific projects.[68]

Currently, officials at the Department of State dismiss the burden on industry and educational institutions as minor compared to the contributions to national security provided by ITAR. They also view the announcements of "ITAR-free" items as anecdotal and not systemic.[69]

There is evidence that ITAR considerations have been a factor in decisions by foreign governments to avoid U.S. products and decisions by U.S. companies to remove USML items from their products:

In April 2006, the Australian Government was reported to have chosen EADS MRH-90 troop-lift helicopters in preference to U.S. Sikorsky models because “the European bid offered the ADF better access to crucial computer source codes than the Sikorsky bid”.[70]

ITAR controls have allegedly hampered the development of the F-35 Lightning II.

ITAR controls, as well as separate policy concerns, have hampered international cooperation in development of the F-35 Lightning II, also known as the Joint Strike Fighter (JSF). Both the UK and the Australian Governments demanded a guarantee that the U.S. will fully disclose technology needed for the JSF project before they would commit to further involvement in the project.[71][72][73]

Concerns over connections between the Boeing 787 and the B-2 Spirit stealth bomber prompted Boeing to take elaborate steps cleansing the commercial jet of any military technology. The issue arose when Boeing engineers, fearing indictment and penalties, refused to sign forms declaring that the 787 was "ITAR-free." As a result Boeing conducted extensive research on the source of technology implemented on the 787. They removed all military technology and either found a commercial source for the same technology or replaced it with technology derived from a commercial source.[74]

Because failure to implement an effective export compliance program can be an exacerbating factor in the event of a breach of ITAR,[52] the U.S. Government encourages U.S. exporters to implement internal export compliance programs.[61] The U.S. Government may also require U.S. exporters that are party to an export authorization to develop a “Technology Transfer Control Plan” specific to that export authorization.[62]

The U.S. Government has substantially increased action against organizations and individuals responsible for breaches of ITAR since 1999. The most notable enforcement action was the $100M penalty applied to ITT as a result of the unauthorized Retransfer of night vision technology to the PRC in 2007.[41] Other major U.S. defense contractors penalized for alleged[42] breaches of ITAR in recent years include (among others) Lockheed Martin,[43]Motorola,[44]Boeing,[45]L-3 Communications,[46] and Northrop Grumman.[47]

In most cases, penalties against corporate entities involve a mandatory compliance component requiring the entity to spend funds on compliance measures, including the appointment of “Internal Special Compliance Officers.”[48] Penalties may also require the party to submit to external audit. In serious cases, a party may be debarred from future exporting for a period of time.[41]

U.S. Government policy also imposes a positive obligation on U.S. companies to fully disclose any breaches of ITAR to the U.S. Government.[49] Failure to do so can significantly increase penalties applied by the U.S. Government.[50]

The U.S. Government:

will also penalize U.S. companies for breaches of ITAR caused by their overseas subsidiaries;[51]

is critical of companies that have not implemented effective export compliance programs;[52] and

treats breaches of ITAR as a strict liability offence and will penalize a successor or purchaser of a company that has breached ITAR as though it was responsible for the breaches.[53]

The unauthorized export of night vision technology has been the subject of several enforcement actions by the U.S. Government.

The U.S. Government will also take action against individuals responsible for breaches of ITAR and such action can involve criminal penalties.

Actions are often initiated by U.S. Immigrations and Customs Enforcement and include:

the prosecution of Dr J Reece Roth of the University of Tennessee in 2008 for breaches of ITAR as a result of access to USML items by a PRC graduate student;[54]

the prosecution of Yen Ching Peng, a Taiwanese national, in the U.S. in 2008 for breaches of ITAR as a result of attempts to export night vision technology and laser sights without the appropriate export authorizations;[55]

the indictment of 3 men, 2 U.S. nationals and a Vietnamese national, in 2008 on charges of illegally exporting night vision technology to Vietnam;[56] and

the prosecution of Chi Mak in 2007 as a result of (among other things) the attempted export of USML items to the PRC (Chi Mak was subsequently sentenced to 24 ½ years in Federal prison).[57]

ITAR also operates to prohibit the “Retransfer” (also called “Re-export”) of items on the USML by foreign persons unless the Retransfer is specifically authorized under the relevant export authorization.

 ITAR's restrictions on retransfer blocked Venezuela's threatened sale of used F-16 aircraft to Iran in 2006.[29]

The prohibition on Retransfer stems from the requirement for all export authorizations to include the statement that “[t]he technical data or defense service exported from the United States in furtherance of this agreement and any defense article which may be produced or manufactured from such technical data or defense service may not be transferred to a person in a third country or to a national of a third country except as specifically authorized in this agreement unless the prior written approval of the Department of State has been obtained."[30]

This means that if, for example, a foreign person wants to Retransfer a USML item to another foreign person (such as a subcontractor), both foreign persons must be authorized under the relevant export authorization:

where the export authorization is a FMS Case, the foreign government must have “Third Party Transfer Approval” from the U.S. Government;[31]

if the export authorization is an export license such as a DSP-5, all foreign parties must be named on the license (for example, some may be “intermediate consignees”);[32] and

where the export authorization is a TAA or MLA, all foreign recipients must be named as parties to (or as “authorized sublicensees” under) the agreement.[33]

Where a foreign person requires access to USML items exported under a specific export authorization, but that foreign person is not authorized under the export authorization, the export authorization must be amended and re-approved by the U.S. Department of State.[28] This can be a time-consuming process.[28]

Restrictions on Retransfer to Dual Nationals and Third Country Nationals

ITAR treats access to USML items by “Dual-National” and “Third Country National” employees of a foreign organization as a Retransfer to the employees’ other countries of nationality.[34] As a result, access to USML items by such employees must be specifically authorized under the relevant export authorization.[35] If access to USML items by Dual and Third Country National employees of a foreign organization is authorized, it only authorizes transfer to the employee. It does not authorize export to the employee’s country of Dual or Third Nationality.[34]

If a U.S. export authorization is silent as to access by Dual and Third Country National employees of a foreign party, the authorization has the effect of limiting access to employees who are nationals only of the country of their employer.[36] This means that, for example, a TAA that includes a UK company as the foreign person, but which does not include clauses authorizing access by Dual and Third Country Nationals will limit access to USML items supplied under the TAA to employees of the UK company who are UK citizens only.

This can cause significant problems for foreign governments and organizations from countries with large first generation immigrant populations (which is discussed in more detail under “Controversy”).[37] As a result, the U.S. Government and the Australian Government have drawn attention to the importance for U.S. companies to consult closely with foreign persons who will be subject to a U.S. export authorization before it is submitted to the U.S. Department of State for approval.[38]

All U.S. manufacturers, exporters, and brokers of defense articles, defense services, or related technical data, as defined on the USML, are required to register with U.S. Department of State. Registration is primarily a means to provide the U.S. Government with necessary information on who is involved in certain manufacturing and exporting activities. Registration does not confer any export rights or privileges, but is a precondition for the issuance of any license or other approval for export.[17] Registration fees start at USD$2,250 per year.[18]

Under ITAR, a “US person” who wants to export USML items to a “foreign person” must obtain authorization from the U.S. Department of State before the export can take place.[3]

A "U.S. person" can be

a U.S. citizen;

a permanent resident who does not work for a foreign company, a foreign government, or a foreign governmental agency/organization;

a political asylee;

a part of the U.S. government, or

a corporation, business, organization, or group that is incorporated in the United States under U.S. law.[19]

A foreign person is any person who is not a lawful permanent resident of the U.S. and includes foreign governments and organizations.[20] This means that, for example a foreign person who is visiting the U.S. will remain a foreign person for the purposes of ITAR and any export of USML items to them inside the U.S. must be subject to an export authorization.

This is similar to the concept of “Deemed Exports” used by the Bureau of Industry and Security within the Department of Commerce in administration of the Export Administration Regulations although the Department of State does not use the term “Deemed Export” [21] (see also “Restrictions on Dual and Third Country Nationals below”)).

The export authorization may take the form of:

a Foreign Military Sales (“FMS”) Case whereby the U.S. Government sells the USML items directly to a foreign government;[22]

an export license, such as a DSP-5 (Department of State Publication No. 5), which authorizes the temporary or permanent export of defense articles and/or technical data to a foreign person (but not technical assistance or defense services);[23]

a Warehouse and Distribution Agreement which is an agreement to establish a warehouse or distribution point abroad for defense articles to be exported from the United States for subsequent distribution to entities in an approved sales territory;[24]

a Technical Assistance Agreement (“TAA”) which authorizes a U.S. manufacturer/service provider to supply defense services to a foreign person (which could involve training or technical discussions regarding U.S. technology);[25] or

a Manufacturing License Agreement (“MLA”) which authorises a U.S. manufacturer to supply manufacturing know-how related to defense articles to a foreign person.[25]

Where the export authorization relates to USML items that are classified information or are identified as “Significant Military Equipment”[26] on the USML, a DSP-83 Nontransfer and Use Certificate will also be required.[27]

The AECA and ITAR were enacted in 1976 during the Cold War and were intended to implement unilateral arms export controls that reflected those imposed on Eastern Bloc countries by the multilateral Coordinating Committee for Multilateral Export Controls.[15]

U.S. Government enforcement activities have increased dramatically since 1999.[16] The U.S. Department of State has published 29 instances of Consent Agreements (agreements entered into by parties charged with breaches of ITAR) since 1999.[4] This compares to 12 Consent Agreements in the preceding 22 years.[4] ITAR’s prominence has also increased as its implications for foreign parties that handle USML items have become better understood (see “Controversy” below).

International Traffic in Arms Regulations (ITAR) is a set of United States government regulations that control the export and import of defense-related articles and services on the United States Munitions List (USML).[1] These regulations implement the provisions of the Arms Export Control Act (AECA), and are described in Title 22 (Foreign Relations), Chapter I (Department of State), Subchapter M of the Code of Federal Regulations. The Department of State interprets and enforces ITAR. Its goal is to safeguard U.S. national security and further U.S. foreign policy objectives.[2]

For practical purposes, ITAR regulations dictate that information and material pertaining to defense and military related technologies (for items listed on the U.S. Munitions List) may only be shared with U.S. Persons unless authorization from the Department of State is received or a special exemption is used.[3] U.S. Persons (including organizations) can face heavy fines if they have, without authorization or the use of an exemption, provided foreign (non-US) persons with access to ITAR-protected defense articles, services or technical data.[4]

The list of ITAR-controlled defense articles, services and technology (collectively “USML items”) changes. Until 1996–1997, ITAR classified strong cryptography as arms and prohibited their export from the U.S.[5] Another change occurred as a result of Space Systems/Loral's conduct after the February 1996 failed launch of the Intelsat 708 satellite. The Department of State charged Space Systems/Loral with violating the Arms Export Control Act and the ITAR.[6][7] As a result, technology pertaining to satellites and launch vehicles became more carefully protected.

ITAR does not apply to information related to general scientific, mathematical or engineering principles that is commonly taught in schools and colleges or information that is (legitimately) in the public domain.[8][9] Nor does it apply to general marketing information or basic system descriptions.[10]

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.

An increasing percentage of federal agencies and companies that are federal contractors or benefits users are requiring that benefits seekers or members of their supply chain be ITAR COMPLIANT or ITAR CERTIFIED. Less affectionately, this spread has been termed “ITAR creep” by its detractors, and it has now landed in the laps of immigration lawyers and compliance officers. 

ITAR stands for International Traffic in Arms Regulations, a program run by the U.S. Department of State Directorate of Defense Trade Controls (DDTC).   The U.S. Commerce Department has a separate but similar program that governs its Export Administration Regulations (EAR). 

The license requirement for dissemination of information does not apply if it falls under one or more of the following exclusions:

Public Domain (ITAR, EAR)

22 CFR Ch.1 § 120.11

    http://www.pmdtc.org/docs/ITAR/2005/22cfr120_Part_120.pdf

[However, note that the U.S. government has nonetheless attempted to prosecute dissemination of control-list technology, even though the information was shown to have been available on the internet.]

15 CFR Ch. 7  § 734.3 (b)(3) http://www.access.gpo.gov/bis/ear/pdf/734.pdf  

Education Exclusion  (ITAR,EAR)

22 CFR Ch.1 § 120.10(a)(5) http://www.pmdtc.org/docs/ITAR/2005/22cfr120_Part_120.pdf

15 CFR Ch.7 § 734.9 http://www.access.gpo.gov/bis/ear/pdf/734.pdf  

No license is required to share with foreign nationals “information concerning general scientific, mathematical or engineering principles commonly taught in universities or information in the public domain”

Fundamental Research  Exclusion (ITAR, EAR)

22 CFR Ch.1 § 120.11(a)(8) http://www.pmdtc.org/docs/ITAR/2005/22cfr120_Part_120.pdf

15 CFR Ch. 7  § 734.8 http://www.access.gpo.gov/bis/ear/pdf/734.pdf

No license is required to disclose to foreign nationals information which is “published and which is generally accessible or available to the public [through, for example] fundamental research in science and engineering at universities where the resulting information is ordinarily published and shared broadly in the scientific community.”

  Other expressed restrictions in ITAR/EAR, and other federal regulations, to providing services to foreign nationals.

  ITAR and EAR prohibit assisting and training foreign nationals anywhere in the design, development, use, testing, etc. of controlled dual-use equipment without a license from Commerce or State.  An example given is in the operation of microbial culture fermenters having a capacity of 20 liters or more.

Furthermore, the technology transfer need not be in the course of a direct commercial relationship.  Technology or code is considered "released" for export when it is "available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology."

In addition, while there is a general license exception in the EAR 774, Note 2, for “General Software”, a prohibition remains in place for export to certain enumerated embargoed countries and for certain types of software.  That Note, PDF, states: [also, see, Section 2B]

(“mass market” software) is available to all destinations, except countries in Country Group E:1 of Supplement No. 1 to part 740 of the EAR, for release of software that is generally available to the public by being:

a. Sold from stock at retail selling points, without restriction, by means of:

1. Over the counter transactions;

2. Mail order transactions;

3. Electronic transactions; or

4. Telephone call transactions; and

b. Designed for installation by the user without further substantial support by the supplier.

Note: The General Software Note does not apply to "software" controlled by Category 5 part 2 ("Information Security"). For "software" controlled by Category 5, part 2, see Supplement No. 1 to part 774, Category 5, part 2, Note 3 Cryptography

Note. Export Administration Regulations July 30, 2004

The license requirement for dissemination of information does not apply if it falls under one or more of the following exclusions:

Public Domain (ITAR, EAR)

22 CFR Ch.1 § 120.11

    http://www.pmdtc.org/docs/ITAR/2005/22cfr120_Part_120.pdf

[However, note that the U.S. government has nonetheless attempted to prosecute dissemination of control-list technology, even though the information was shown to have been available on the internet.]

15 CFR Ch. 7  § 734.3 (b)(3) http://www.access.gpo.gov/bis/ear/pdf/734.pdf  

Education Exclusion  (ITAR,EAR)

22 CFR Ch.1 § 120.10(a)(5) http://www.pmdtc.org/docs/ITAR/2005/22cfr120_Part_120.pdf

15 CFR Ch.7 § 734.9 http://www.access.gpo.gov/bis/ear/pdf/734.pdf  

No license is required to share with foreign nationals “information concerning general scientific, mathematical or engineering principles commonly taught in universities or information in the public domain”

Fundamental Research  Exclusion (ITAR, EAR)

22 CFR Ch.1 § 120.11(a)(8) http://www.pmdtc.org/docs/ITAR/2005/22cfr120_Part_120.pdf

15 CFR Ch. 7  § 734.8 http://www.access.gpo.gov/bis/ear/pdf/734.pdf

No license is required to disclose to foreign nationals information which is “published and which is generally accessible or available to the public [through, for example] fundamental research in science and engineering at universities where the resulting information is ordinarily published and shared broadly in the scientific community.”

  Other expressed restrictions in ITAR/EAR, and other federal regulations, to providing services to foreign nationals.

  ITAR and EAR prohibit assisting and training foreign nationals anywhere in the design, development, use, testing, etc. of controlled dual-use equipment without a license from Commerce or State.  An example given is in the operation of microbial culture fermenters having a capacity of 20 liters or more.

Furthermore, the technology transfer need not be in the course of a direct commercial relationship.  Technology or code is considered "released" for export when it is "available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology."

In addition, while there is a general license exception in the EAR 774, Note 2, for “General Software”, a prohibition remains in place for export to certain enumerated embargoed countries and for certain types of software.  That Note, PDF, states: [also, see, Section 2B]

(“mass market” software) is available to all destinations, except countries in Country Group E:1 of Supplement No. 1 to part 740 of the EAR, for release of software that is generally available to the public by being:

a. Sold from stock at retail selling points, without restriction, by means of:

1. Over the counter transactions;

2. Mail order transactions;

3. Electronic transactions; or

4. Telephone call transactions; and

b. Designed for installation by the user without further substantial support by the supplier.

Note: The General Software Note does not apply to "software" controlled by Category 5 part 2 ("Information Security"). For "software" controlled by Category 5, part 2, see Supplement No. 1 to part 774, Category 5, part 2, Note 3 Cryptography

Note. Export Administration Regulations July 30, 2004

 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.

Another set of expressed export and international trade restrictions is contained in the U.S. Treasury’s Office of Foreign Assets Control (OFAC) prohibitions against the provision of services to countries subject to US sanction programs, boycotts, etc. without a license.  The OFAC prohibitions may impose a comprehensive ban on service provision that includes services associated with IT-BPO, and other business and technology services, even if there is no direct or dual-use military application.  In some instances, the OFAC ban extends to:

Conducting surveys and interviews in boycotted countries

Providing marketing & business services to persons in boycotted countries  

Creating new information materials at the behest of persons in a boycotted country

Engaging the services of persons in a boycotted country to develop new information materials

There are a number of countries currently under Treasury boycotts of various types, which include (but are not limited to):

    Cuba, Iran, Iraq, Libya, Liberia, Sudan, Syria, North Korea

NOTE:  The restrictions on provisions of goods and services to some boycotted countries can be thorough-going and applies to foreign business units of U.S. companies.

            See, OFAC website for specific restrictions, and license requirements, which vary depending upon the country:

http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml

        OFAC Sanctions Programs 

Program Abbreviation 

Program Last Updated:

    Balkans-related Sanctions

[BALKANS]

06/22/2010

    Belarus Sanctions

[BELARUS]

05/19/2010

    Burma Sanctions

[BURMA]

09/10/2010

    Cote d’Ivoire (Ivory Coast)-related Sanctions

[COTED]

04/13/2009

    Counter Narcotics Trafficking Sanctions

[SDNT] ; [SDNTK]

10/26/2010

    Counter Terrorism Sanctions

[SDGT] ; [FTO] ; [SDT]

11/04/2010

    Cuba Sanctions

[CUBA]

10/13/2010

    Democratic Republic of the Congo-related Sanctions

[DRCONGO]

06/24/2010

    Diamond Trading Sanctions

NONE

05/21/2008

    Iran Sanctions

[IRAN] ; [IRGC] ; [IFSR] ; [IRAN-HR]

09/29/2010

    Iraq-related Sanctions

[IRAQ]

09/13/2010

    Former Liberian Regime of Charles Taylor Sanctions

[LIBERIA]

05/23/2007

    Lebanon-related Sanctions

[LEBANON]

07/30/2010

    Non-proliferation Sanctions

[NPWMD]

10/27/2010

    North Korea Sanctions

[NORTH KOREA] ; [DPRK]

11/04/2010

    Somalia Sanctions

[SOMALIA]

11/03/2010

    Sudan Sanctions

[SUDAN] ; [DARFUR]

10/20/2010

    Syria Sanctions

[SYRIA]

07/10/2008

    Zimbabwe Sanctions

[ZIMBABWE]

11/25/2008

The export of U.S.-origin “dual-use” items are regulated by the licensing requirements administered by the U.S. Commerce Department’s Bureau of Industry and Security (BIS).   Export of dual-use items present a different set of licensing requirements under the Commerce Department Export Administration Regulations (EAR), that have a different definition, as specified in that agency’s Commerce Control List (“CCL”) which includes a large number of commercial items.  The CCL is a very long alphabetical list that runs single-spaced for 48 pages. The CCL is found in Supplement 1 to Part 774 of the EAR. [http://www.access.gpo.gov/bis/ear/pdf/indexccl.pdf ]    

Also, see, EAR, the Commerce Control List, Part 774, Categories 0-11, plus supplements, http://www.gpo.gov/bis/ear/ear_data.html.  The Export Administration Regulations (“EAR”), 15 CFR Parts 730-774, sets forth requirements relating to the export of commercial and dual use items, and includes the CCL.

Note, in particular, certain additional items described in Part 732 of the Export Administration Regulations.  The definition of Dual-use at Part 772 of the EAR is:

Dual-use—Items that have both commercial and military or proliferation applications. While this term is used informally to describe items that are subject to the EAR, purely commercial items are also subject to the EAR (see §734.2(a) of the EAR).