Background
As a public institution of higher education, the University of New Hampshire (UNH) employs foreign nationals, matriculates an international student body, and hosts visiting foreign scholars in connection with international exchange programs, teaching, and research. It is UNH’s intent to employ foreign nationals and host international students and scholars in a welcoming manner while also ensuring compliance with U. S. laws and regulations governing the export of controlled commodities and technical data, as well as U.S. sanctions and embargoes.
What is an export?
Besides the shipment of physical items abroad, an export includes any release of export-controlled technology or source code to a foreign national.[1] Technology or software is “released” for export through: (i) Visual inspection by foreign nationals of U.S.-origin equipment and facilities; (ii) Oral exchanges of information in the United States or abroad; or (iii) The application to situations abroad of personal knowledge or technical experience acquired in the United States.
While UNH’s Office of International Scholars and Students (OISS) assists with issues surrounding visas and immigration, the Office of Contracts and Export Controls (CEC) assesses the need for export licenses for international students, foreign national visitors, and foreign hires. CEC is also responsible for applying for export licenses on behalf of UNH. Please review the guidance offered here and contact CEC with questions or concerns.
Office of International Scholars and Students (OISS)
Contracts and Export Controls (CEC)
International Students
Foreign National Undergraduates
- Catalog Courses and/or information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities are exempt from export control laws.
- Undergraduates participating in more advanced coursework (i.e., capstone projects) should be treated as Foreign National Graduate Students (see below).
Foreign National Graduate Students
Foreign national graduate students working on a project may be required to obtain an export license if:
- Publication of the research results is restricted, delayed, or subject to approval by a sponsor of the project;
- Access and dissemination controls (e.g., in a grant or contract) limit the ability of foreign nationals to participate in or access the results of a project without sponsor approval;
- The foreign student requires access to export controlled equipment or technology in order to conduct their research; or
- The area of study or topic of a class is prohibited by a U.S. Treasury Department sanction or embargo against the student’s country of citizenship.
Dissertation research must meet the standards for "fundamental research" to be exempt from export control regulations.
Foreign National Visiting Scholars
Before collaborating with foreign nationals (either here on campus or abroad), be sure that your planned activities qualify as fundamental research. Release of technology or controlled data to a foreign national visiting scholar may be subject to export control laws. Therefore, all visiting foreign nationals should be screened against restricted party lists to ensure compliance with regulations.
A Visiting Scientist Agreement (VSA) may need to be signed prior to the visiting scholar’s arrival. This agreement is ordinarily entered into between the visiting scientist and the sponsoring department and their Dean. Questions about the VSA should be addressed to Victor Sosa, Director, Contracts and Export Controls.
Visiting Scientist Agreements Guidance
Template Visiting Scientist Agreement
Foreign Hires
The revision of Form I-129, “Petition for a Nonimmigrant Worker,” to include an Export Control Attestation, underscores the nation’s sensitivity regarding the “deemed export rule”[2], which stipulates that releasing[3]controlled information or data to a foreign national within the United States (or abroad) is deemed to be an export to that foreign national’s home country.
This attestation within the H-1B and J-1 visa application package asks UNH to affirm that either (1) the prospective employee will not be exposed to controlled technology or information that would require an export license; or (2) an export license will be secured by UNH prior to the employee being given access to that controlled technology or information. In order to complete this part of the application, the department sponsor, Chairperson, and Dean must assess and understand the controls that apply to the sorts of technology/technical data that the prospective employee will require access to as part of their employment.
Exact job duties for a new position might not be known during the hiring process; so, the need for a deemed export license could be unclear. Many foreign nationals employed at universities (typically under an H-1B visa) either do not conduct technology-related research or conduct only “fundamental research,” which is exempt from export controls. However, although such research may be fundamental, deemed export licenses may still be required in the conduct of the research if controlled technology or technical data is needed to generate fundamental research results. Also, once a foreign national is employed, it may be necessary to consider changes to their duties and whether those changes result in the need for an export license.
UNH, and the signatories to the I-129 (personally), may be subject to criminal sanctions if the information on the form has been misrepresented. Such criminal penalties would be in addition to penalties imposed under the EAR and the ITAR for export violations (e.g. up to $1 million per violation, up to 20 years in jail, denial of export privileges, and debarment from government contracts). Thus, it is crucial that you contact CEC if you have any question as to whether the foreign hire will have access to export controlled technology or data.
Questions?
CEC can work with you to ensure that your project can both advance the University’s mission and comply with export controls regulations. Training and consultation is available from CEC staff. Please contact us if you have any questions or concerns about your research contracts or about the potential impact of export controls on your research program.
[1] A “foreign national” is any person who is not a U.S. citizen, not a U.S. permanent resident (i.e. a “green card” holder), or not an individual who has been legally granted asylum or refugee status in the U.S.
[2] See 15 CFR § 734.2(b)(2)(ii) and 22 CFR § 120.17.
[3] See “What is an export?” discussion, above.
View Export Controls Knowledge Base
The Knowledge Base contains forms, instruction and training material, minutes, policies, tools and other resources to support your research efforts by topic area.
Victor Sosa, Director
Contracts & Export Controls
Phone: (603) 862-2001
Email: Victor.Sosa@unh.edu
Melissa McGee, Assistant Director
Research Integrity Services
Phone: (603) 862-2005
Email: Melissa.McGee@unh.edu
