For businesses involved in the manufacture and sale of dual use technologies, i.e. technology that can have a military as well as a commercial use, bringing a foreign national  into the U.S., even as a business visitor, can become problematic, not because of any particular immigration law per se, but on account of Export Control Laws promulgated by the U.S. Department of Commerce and other U.S. Agencies.

Of particular significance to the immigration practitioner is the, so called, “deemed export rule”  and the existence of a Technology Alert List, which is a list of particular dual use technologies that the U.S. government is especially sensitive about. As provided under the Export Administration Regulations (EAR) an export, contrary to popular belief, does not necessarily require sending physical products outside of the U.S., but can also involve disclosing information about a technology to a foreign national while he or she is in the U.S. In the parlance of the U.S. Department of Commerce’s Bureau of Industry and Security, such a disclosure of information is, in fact,”deemed” an export event, which could make it necessary for the foreign employer to obtain an export license.  

The upshot of the “deemed export rule,” as far as immigration is concerned, is that there is a heightened risk of a violation of the rule when an alien enters the U.S. for the purpose of visiting a company in an industry that falls within the purview the Technology Alert List. Such an alien could unwittingly become the subject of an extensive security review called a Visa Mantis Security Check, which can involve the U.S. Department of State’s soliciting the views of upwards of a dozen agencies regarding the  background and bonafides of the foreign national before issuing a visa. In many cases, such reviews have taken anywhere from three to six months to complete and can result in the imposition of severe restrictions on what the foreign national can actually do in the U.S. 

For businesses involved in fields involving technologies that can potentially have military uses,  it is important to take proactive steps, even when trying to bring in a foreign national technologist as a business visitor, to arm the alien with a documentary presentation that details what the foreign national’s background is and what he or she will be doing in the U.S. According to one commentator, the foreign national may need, among other things, (1) a letter from the employer detailing its work and whether and to what extent the alien would be exposed to technical know-how; (2) documentation showing that the technology at issue is not protected and is in the public domain, (3) the resume of the foreign national and recommendation letters from U.S. sources; and (4) documentation from the Department of Commerce showing that the technology at issue is not subject to an export license. 

What is also important for businesses that operate in sensitive industries to understand  is that not only can a foreign national employee or consultant be denied a visa, but that the authorities in reviewing the immigration status of an individual alien via a Visa Mantis Security Check, may also initiate an inquiry into a host-company’s possible, previous violations of the nation’s export control laws. Like with employer sanctions in the immigration context, violations of U.S. export control laws can expose a business to significant civil and even criminal penalties. ¼/p>