Security checks

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cinta

Registered Users (C)
It looks like one of the variables in our Backlogs is the Security Check, both the FP check and the Name check. There are really a lot of questions as to whether there is a global functional system available 24/7. I have read reports of viruses, broken software/hardware, lack of competent IT personnel and etc. take a look at the following.

Multitude of Databases Complicates Information Sharing


Oct. 29, 2002
Standard Version


Since this past February, the House and Senate Intelligence Committees have conducted a
Joint Investigation into the Sept. 11, 2001, attacks against the United States. Over the past
couple of months, they held a series of hearings. Their inquiry is focused on what the U.S.
intelligence community (IC) knew and didn't know about the attacks, and how the IC's
performance can be improved.

While many issues concerning how the IC collects and processes information were
covered, one issue that kept coming up was the vast number of IC databases. While many
of the databases had valuable information, that information often remained unused because
it was not shared amongst intelligence agencies, much less with other U.S. government
agencies and law enforcement officials. As Eleanor Hill, staff director of the joint inquiry
staff, testified on Oct. 1, 2002, "Not all threat information in possession of the intelligence
community or law enforcement agencies is shared with agencies that need it the most in
order to counter the threats."

The staff review found no single agency or database or computer network that integrates all
counter terrorism information nationwide. Information about the hijackers and al Qaeda can
be found in disparate databases spread among a range of intelligence and civilian agencies."

Effective defense against future terrorist attacks will depend in large part on effective entry
of information into the databases, as well as the sharing of data amongst them. The
following is a listing of those databases, derived from the written testimony presented during
the public hearings of the joint inquiry. It is undoubtedly an incomplete list, but the
databases described below do include all those described in the hearings.


CCD: The State Department's Bureau of Consular Affairs duplicates biographic data and
photos concerning individual visa cases in its Consolidated Consular Database (CCD). The
CCD contains records of the past five years nonimmigrant visa issuances and denials. CCD
is accessible at all consular posts and is updated around the world every five minutes.


CLASS: Independently from the State Department's TIPOFF system (see below) the
Bureau of Consular affairs also receives basic biographic data directly from the FBI criminal
databases — some of which might include information about terrorists — and feeds that
information into the Consular Lookout and Support System (CLASS). It uses search
algorithms to match lookout information to individual visa applicants. All consular officers
adjudicating visa applications overseas run checks against that system before issuing a visa.
Information entered into the CLASS system is also entered into IBIS (see below) for use
by U.S. Immigration and Naturalization Service officers at ports-of-entry. Consistent with
the requirements of the USA Patriot Act, more than 7 million names of persons with FBI
criminal and other name-retrievable records were added to CLASS by August 2002,
augmenting 5.8 million name records, from State, the Drug Enforcement Agency, and
intelligence sources.

Related document: 9 FAM PART IV Appendix D, 200 CLASS (CONSULAR
LOOKOUT AND SUPPORT SYSTEM) (TL:VISA-267; 04-25-2001)


CODIS: Established by the FBI in 1990, the Combined DNA Index System is a national
index of DNA profiles. It is a key tool for solving violent crimes by enabling federal, state
and local crime labs to exchange and compare DNA profiles electronically, thereby linking
crimes to each other and to convicted offenders.


IBIS: The Interagency Border Inspection System assists border enforcement agencies in
focusing their limited resources on potential non-compliant travelers at ports of entry. IBIS
provides the law enforcement community with access to computer-based enforcement files
of common interest. IBIS includes the combined databases of U.S. Customs, Immigration
and Naturalization Service, State Department, and 21 other federal agencies. Names are
also checked against the FBI's National Crime Information Center wanted persons file and
allows this its users to interface with all 50 states via the national Law Enforcement
Communications Systems. IBIS also contains the Immigration and Naturalization Service's
NAILS database. More than 650,000 federal, state and local officers have on-the-street
access to the information it contains. IBIS is supplemented by IDENT, an Immigration and
Naturalization Service computer system that uses fingerprints to identify aliens encountered
at the borders by U.S. agents and inspectors.

Several databases feed into IBIS. Among the systems now in use are:



The Central Index System for tracking visas.


Computerized Applicant Information Management System, which houses information
about visa applicants who seek to change their visa status.


Student Exchange Visitor Information System, which houses information about
nonimmigrant students.


Non-Immigrant Alien Lookout System, which tracks enforcement actions taken against
individuals by the Justice Department.


Consular Lookout and Support System, used by the State Department to house
information about people who have violated the terms of their visas.


Consolidated Consular Database, which integrates State Department information used
by foreign visa officers.



JITF-CT: The Defense Intelligence Agency established the Joint Intelligence Task
Force-Combating Terrorism to provide enhanced analysis and production to support
worldwide efforts to counter terrorism. JITF-CT analysts produce daily assessments of
possible terrorist threats to DoD personnel, facilities, and interests.


Continued
 
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continued

Continued

. IBIS is supplemented by IDENT, an Immigration and
Naturalization Service computer system that uses fingerprints to identify aliens encountered
at the borders by U.S. agents and inspectors.

Several databases feed into IBIS. Among the systems now in use are:



The Central Index System for tracking visas.


Computerized Applicant Information Management System, which houses information
about visa applicants who seek to change their visa status.


Student Exchange Visitor Information System, which houses information about
nonimmigrant students.


Non-Immigrant Alien Lookout System, which tracks enforcement actions taken against
individuals by the Justice Department.


Consular Lookout and Support System, used by the State Department to house
information about people who have violated the terms of their visas.


Consolidated Consular Database, which integrates State Department information used
by foreign visa officers.



JITF-CT: The Defense Intelligence Agency established the Joint


NAILS: The National Automated Immigration Lookout System is a central mainframe
computer system that provides a reliable method of verifying the admissibility of an
individual and preventing inadmissible individuals from entering the United States.

Related document: Department of Justice/U.S. Immigration and Naturalization Service —
National Automated Immigration Lookout System II


NCIC: The FBI's National Crime Information Center is a national index of theft reports,
warrants, and other criminal justice information submitted by law enforcement agencies
across the country.


NDPIX: The National Drug Pointer Index (NDPIX) is a system that allows state, local
and federal agencies to determine if a suspect is under investigation by any other
participating agency. NDPIX became operational across the United States in October
1997. NLETS (see below) is the backbone for the NDPIX. Participating agencies are
required to submit active case targeting information to NDPIX in order to receive pointer
information from the system. The greater the number of data elements entered, the greater
the likelihood of identifying possible matches. Designed to be a true pointer system rather
than an intelligence system, the NDPIX merely serves as a "switchboard" that provides a
vehicle for timely notification of common investigative targets. The actual case information is
shared only when telephonic contact is made between the law enforcement personnel who
have been linked by their entries into the NDPIX.


NIBIN: The National Integrated Ballistics Information Network attempts to unify Bureau
of Alcohol, Tobacco and Firearms and FBI firearms databases.


NLETS: The National Law Enforcement Telecommunication System is a nationwide
network that links all states and many federal agencies together for the exchange of criminal
justice information. In each state, an agency is responsible for maintaining in-state law
enforcement telecommunications systems that deliver messages throughout the state. Each
state's criminal justice system can access any other state's criminal justice system to obtain a
variety of information, including vehicle registration, drivers licenses, and criminal history
records. Other data includes plane, boat and gun registration.


NSEERS: The Immigration and Naturalization Service began to implement the National
Security Entry-Exit Registration System at U.S. port-of-entry on Sept. 11, 2002. Under
NSEERS, the service is fingerprinting and photographing non-immigrant aliens who may
potentially pose a national security risk upon their arrival in the United States.


SEVIS: The Immigration and Naturalization Service recently deployed a new Student and
Exchange Visitor Information System, which is the automated part of its Student and
Exchange Visitor Program, to track and monitor foreign students. Enrollment of educational
institutions in SEVIS began on July 1, 2002.

Related document: Immigration and Naturalization Service — SEVIS overview


TIPOFF: In 1987, the State Department established the TIPOFF program for the
purpose of using biographic information drawn from intelligence products for watch-listing
purposes. In August 2002, the entire TIPOFF database was made available to authorized
users from five IC and law enforcement agencies. TIPOFF currently contains more than
70,000 names of suspected terrorists who are either members of foreign terrorist
organizations, known hijackers, car-bombers, assassins, or hostage-takers. Currently, the
CIA and the State Department are cooperating to transform the TIPOFF watch-list into a
National Watch-list Center. This center will serve as the point of contact and coordination
for all watch-lists in the U.S. government.


TIPS: Terrorism Information and Prevention System, established by the FBI consists of a
website and a toll free 800 number for reports of any information about possible terrorism
crimes.


Visa Vipers: In 1993, the State Department established the Visa Vipers program as a
dedicated telegraphic channel for reporting information on known and suspected terrorists
directly to the TIPOFF staff. It is used both by State Department overseas and by
intelligence agency headquarters in Washington.


TECS: Treasury's Enforcement Communications Systems is a computerized information
system designed to identify individuals and businesses suspected of involvement in violations
of federal law. It is also a communications system permitting message transmittal between
Treasury, law enforcement offices and other national, state and local law enforcement
agencies.

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28th August 2003 03:14 PM

MORE ON IBIS

IBIS

NSC is processing the IBIS checks on each day's receipted cases. If a
case comes back from the IBIS check with a "definitive negative" (i.e. no
negative information on the applicant), then the examiner can go forward
with the case. If there is a "hit," IBIS generates a name and date of birth,
which is then put through an identification process.

If an IBIS hit occurs, a "triage" group then evaluates the case. Those with
serious criminal histories, prior orders of deportation / removal, or deemed
to be potential security threats are referred for enforcement. Smaller hits,
such as minor crimes that do not make the person removable, are sent for
adjudication.

The NSC suggested including a copy of the applicant's driver's license with
each application in an effort to help resolve some IBIS hits. These
sometimes occur when an applicant's name and date of birth is the same
as that of someone with a negative background. The physical description
on a driver's license may help to clarify that the applicant is a different
person from the IBIS result.
 
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Thank you for your research

It's discouraging to see what we have to go through. I am still stuck with this God-forsaken useless check in local interview.

Another problem, rightfully brought up in the proposed petition to BCIS, is the lack of a tracking system for the security checks.

I still do not know when my file was forwarded to be checked. Are we supposed to have the check back in 120 days (as per FBI testimony? If I ask for FOIA, they'll think that I am afraid of something. Well, I am afraid that someone used my file to start their barbeque fire.

If you find anything else on the subject, please post it.
 
More on IBIS/Name check

The validity of the Name check is 35 days and it should be done within 15 days of an immigration application.

he Status of IBIS Checks

Some security checks are completed in a few minutes, others require information that may be difficult to collect
and may take weeks to resolve.

Please make sure all petitions and applications submitted have all name and date of birth blocks complete for
both the petitioner and all beneficiaries. This simple step will eliminate a number of requests for evidence to
gather that information. If you are aware of prior arrests it is helpful to disclose that information as well as the
final disposition of those proceedings. This may save time in resolving the security issues as well.

Validity period of an IBIS check

An IBIS check is valid for 35 days. An IBIS check must be valid at the time the final decision is rendered. It is
possible that a case may be subject to more than one IBIS check during the adjudication process. Subsequent
checks will consider both the prior and new information. Each application filed will be subject to an IBIS check
even if a prior filing was checked and cleared.

FOIA Request

"Case is pending" is the type of response practitioners would get from an Information Officer, not from FOIA. If
a FOIA request is made regarding a record that contains IBIS related information, the center must first decide
which agency originated the IBIS data. The center should only determine the disclosure of
documents/information originated by INS or those for which the center has control. IBIS provides an interface
to support systems of different border inspection agencies; therefore, the data produced from this system does
not belong to any one agency.

In accordance with the Department of Justice, Office of Information and Privacy, the standard procedures for
handling records originating with other Federal agencies is to refer the records to the originator for direct
response to the requester. In the event the IBIS record originated with INS, it would be a product from the
National Automated Immigration Lookout System (NAILS). NAILS records maintained in A-files are denied or
released in accordance with standard procedures.

The decision to withhold or release State and local agency records found in INS files is under the control of INS.
Again, the decision to withhold or release would depend on the contents.

The fact that the IBIS database exists or that the Federal government performed a check of this system is not
normally withheld. It is the contents that must be analyzed for applicable FOIA/PA exemptions. Since there are
always exceptions, the FOIA/PA processor must evaluate every request for copies of records on a
case-by-case basis.
 
I wonder if the check is done before assigned to officer or before officer review the case or before officer approve a case.
 
Re: Thank you for your research

Originally posted by rav8tor
It's discouraging to see what we have to go through. I am still stuck with this God-forsaken useless check in local interview.

Another problem, rightfully brought up in the proposed petition to BCIS, is the lack of a tracking system for the security checks.

I still do not know when my file was forwarded to be checked. Are we supposed to have the check back in 120 days (as per FBI testimony? If I ask for FOIA, they'll think that I am afraid of something. Well, I am afraid that someone used my file to start their barbeque fire.

If you find anything else on the subject, please post it.
Click to expand...

rav8tor,

Good to see you back. Please post your story in another thread if you feel it is contibuting..I think it is.
Check to see if the Local service center your application is has a working IBIS conputer (at least one)and if the adjudicators have been trained for it!
Since I think you are in "sensitive area", expect more checks from the State department and even Commerce Department for possible "EXPORT CONTROL" regulations. The country of origin is also significant here from different prospectives,i.e. terrorist, sensitive technology (Russia, India, Pakistan, Israel)and also State Departmentr lists.
As far as the Information Release Act, the IBIS check results are not included in it.
Cheers
 
Some info

I have recently applied locally for AP and EAD. They performed an IBIS check on both me and my wife. I looked at the sheet of paper that the officer had in her hand where this info was written, that's how I know. The check lasted only 5 minutes!

What else am I waiting for to be scheduled for local interview? I thought that there would be an additional name check? I am definitely confused...if everything is fed into IBIS, then...I don't know, maybe you can re-explain to me the security check process.
 
Originally posted by dengdeng
I wonder if the check is done before assigned to officer or before officer review the case or before officer approve a case.
Click to expand...

dengdeng,

I am not sure but it looks like THE FIRST TIME is done within 15 days and then put back. It will be done again when adjudication time comes, but I also think it is done in between for several reasons!
 
Re: Some info

Originally posted by rav8tor
I have recently applied locally for AP and EAD. They performed an IBIS check on both me and my wife. I looked at the sheet of paper that the officer had in her hand where this info was written, that's how I know. The check lasted only 5 minutes!

What else am I waiting for to be scheduled for local interview? I thought that there would be an additional name check? I am definitely confused...if everything is fed into IBIS, then...I don't know, maybe you can re-explain to me the security check process.
Click to expand...

rav8tor,

It may be just "normal backlog" for your case. Your country of origin and your job description may warrant more checks. The good thing is that the IBIS works in your local center even though, it may be the only one. There is also the more general question as to why people are TRANSFERED to begin with. Missouri Service Center is supposed to take cases from the others, why they do not transfer there? Also the Obutsdman is supposed to appoint local Obutsdmen, hopefully soon. Maybe we can talk to those!

The bottom line is we do not know! Hope is not shredding.
Two INS Employees Indicted For Shredding
Applications

This week two contract employees with the INS California Service Center were
indicted on charges that they shredded as many as 90,000 applications in an
effort to reduce the backlog of pending cases. Dawn Randall, a file room
manager, and Leonel Salazar, a file room supervisor, are accused of ordering
other employees to shred the applications after a review showed that there
were 90,000 unprocessed documents in the file room.

The shredding allegedly occurred between February and April of last year.
According to the indictment, the backlog was gone by March, and Randall
ordered employees to continue shredding new documents in order to prevent
the creation of another backlog. The problem was discovered in April when an
INS supervisor noticed what was occurring. At the time, the INS attempted to
make people aware of the problem, setting up a hotline for people who
suspected their information might have been among that destroyed.

Since then, the INS says that it has improved oversight at the Service Center,
and that it has increased the number of INS employees, as opposed to
contract employees. Also, only INS employees can destroy documents.

Randall and Salazar each face one count of conspiracy and five counts of
willfully destroying documents. The maximum possible sentence is 20 years.
 
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Country/Job

I. INTRODUCTION.

In today’s heightened security environment, the U.S. government is increasing its scrutiny of foreign nationals working for U.S. companies. Of particular concern are the “deemed export” regulations. They provide that giving controlled technology to a foreign national located
in the United States is deemed equivalent to exporting that controlled technology to a foreign country. Immigration lawyers should ask whether the immigrant will have access to controlled technology. If that question is not asked, the visa is likely to be delayed and even
worse, companies could be found in violation of the “deemed export” regulations administered through the Commerce Department and State Department.

In preparing visa applications, immigration counsel should be cognizant of the level of controlled technology to which a foreign national will have access, and to coordinate with the company’s compliance personnel to determine whether an export license is required. Export
license applications, if required, should be initiated as early as possible in the hiring and visa issuance process in order to avoid costly delays.

The main sectors where foreign national employees can require access to controlled technology are the defense and high technology industries, although industries as diverse as civilian aerospace, petrochemicals, specialty steel production, nuclear power, and consulting also can
be affected by export licensing requirements.

A web of export controls governs exports to foreign nationals. Most technology used in the development, production, or use of commercial items is controlled under the Commerce Department’s Export Administration Regulations (“EAR”), which control exports and reexports
of a broad range of technical information, for both national security and foreign policy reasons. The State Department’s International Traffic in Arms Regulations (“ITAR”) control exports of technology and services that relate to military items. For companies in the defense
industry that are regulated by the Defense Security Service, employment of foreign nationals without appropriate safeguards in place can jeopardize a company’s security clearances.

This article focuses on the deemed export rule under the Commerce Department’s EAR, which govern exports of non-military technology. While there are some significant differences between the EAR and ITAR, the deemed export concept, as noted above, is increasingly
important under both regimes and the basic concepts are the same under both regimes. In addition, domestic transfers of technology to foreign nationals raise issues under U.S. sanctions and anti-terrorism regulations as well as traditional export controls.


II. THE "DEEMED EXPORT" REGULATIONS ARE BROAD.

A deemed export occurs when a company releases information that falls within the definition of technology to a foreign national, including one of its employees, in the United States . Once such information is released to a foreign national, it is deemed to have been exported to
that person’s country of nationality. Under both the EAR and the ITAR, the deemed export rule applies to technology (and, in some cases, software) transfers to a foreign national, if the technology (or software) to which the foreign national is exposed relates to the development,
production, disposal, or use of items controlled under either the EAR or the ITAR.

Under the EAR, the deemed export rule is derived from the definition of “export,” which includes “[a]ny release of technology or source code subject to the EAR to a foreign national” in the United States . See 15 C.F.R. § 734.2(b)(2)(ii). This so-called “deemed export” rule
presumes that any technology released to a foreign national in the United States ultimately will be exported to that national’s home country. The same export controls that apply to a physical export of the technology to that country, therefore, apply to a release of the technology
in the United States

A release of technology is defined under the EAR as including:

(1) Visual inspection of U.S.-origin technology by a foreign national;
(2) Oral exchange of information in the United States or abroad; or
(3) Application to situations abroad of personal knowledge or technical experience acquired in the United States . See 15 C.F.R. § 734.2(b)(3).

A release of technology is defined under the ITAR as “[d]isclosing (including oral or visual disclosure)” ITAR-controlled technical data to a foreign national in the United States . See 22 C.F.R. § 120.17(4).

Both the EAR and ITAR focus on the fact that a transfer of technology can occur with the mere inspection or discussion of technology. Accordingly, immigration counsel should ask whether a foreign national employee could be exposed to controlled technology, including
internal company research material, staff meetings, telephone calls, e-mail and other modes of communication. If so, a license may be required.

For dual-use items, deemed export licenses are processed by the Commerce Department’s Bureau of Industry and Security (“BIS”), the Bureau primarily responsible for enforcing the EAR. A company must submit a deemed export license application on a standardized form,
which must be accompanied by a letter of explanation detailing the type of technology to which the foreign national will have access. Additional information regarding the background of the foreign national also must be submitted to BIS, including a current resume. Additional
requirements for technology license applications are found at 15 C.F.R. § 748, Supp. 2. BIS has issued guidance for deemed export license applications, including information about standard licensing conditions that are generally attached to export licenses. See
www.bis.doc.gov/DeemedExports/foreignationals.pdf.



III. CERTAIN FOREIGN NATIONALS, DUAL NATIONAL AND EMBARGOED COUNTRY NATIONALS MAY NEED LICENSES.

The export license requirement reaches foreign nationals who are not lawful permanent residents (or in a protected class), dual nationals, and embargoed country nationals.

A. Foreign Nationals with a Foreign Permanent Resident Status and Dual Nationals Are Subject to the Deemed Export Rules.

For purposes of the EAR deemed export rule, a foreign national is any person who is not a U.S. citizen, lawful permanent resident, political asylee, refugee, or another member of a limited class of “protected individuals.” See 15 C.F.R. § 734.2(b)(2)(ii)(citing 8 U.S.C.
§ 1324b(a)(3)). Workers employed in the United States under employment-based visas generally are considered foreign nationals for purposes of the deemed export rule. The holders of “H” visas are the largest class of individuals that may need export licenses.

The EAR does not directly address the question of how to treat dual nationals or persons holding the equivalent of permanent residency in a country other than their country of citizenship. F or deemed export purposes, the Commerce Department has issued an informal
interpretation indicating that it considers the last permanent resident status or citizenship obtained by such an individual as his or her nationality. See http://www.bis.doc.gov/DeemedExports/DeemedExportsFAQs.html. For example, if a citizen of India were to have
subsequently obtained permanent resident status in the United Kingdom, she would be considered a United Kingdom national for purposes of the deemed export rule.

B. Embargoed Country Nationals Generally Need Licenses.

Nationals of countries subject to U.S. embargoes or subject to anti-terrorist controls pose additional issues from the perspective of deemed export controls, as the release of virtually any EAR-controlled technology to them will likely require an export license. Additional
compliance issues may arise with respect to economic sanctions regulations maintained by the Treasury Department’s Office of Foreign Assets Controls (“OFAC”) against Cuba , Iran , Libya , or Sudan . A broad range of controls, including those prohibiting exports of any
U.S.-origin technology, generally applies to such countries, as well as, in some cases, their nationals. [Note #1] Immigration counsel should consult with compliance professionals when a company contemplates employing a national from one of the embargoed countries, as
licensing policy may disfavor the granting of a license, or there may be a statutory provision that prohibits granting a license for the technology in question.


IV. IMMIGRATION COUNSEL SHOULD ASK ABOUT SERVER ACCESS.

The lion’s share of controlled technology is stored in some electronic form, and computer networks provide numerous opportunities for deemed exports to occur.

A. Inquire Whether the Foreign National Has Unrestricted Server Access.

Both technical personnel and information technology support personnel may require licenses if they have unrestricted access to controlled data.

Immigration counsel should ask whether the company has password protection for individual documents, protected databases, and other computer security. Companies employing foreign nationals that have significant amounts of controlled technical data stored on their computer
systems are at risk unless they segregate controlled technology within the server network. A company using best practices may require a compliance person to be responsible for granting access to restricted servers.






continued
 
Continued

B. Ask Whether Foreign National Computer Support Personnel Have “Master” Access.

A deemed export compliance issue that has become increasingly important is the granting of “master” access to information technology (“IT”) support staff over computer systems containing controlled technical data. Master access is granted to IT personnel to enable them to
maintain and troubleshoot computer systems, implement access controls, and conduct backup and recovery operations. Even though IT personnel may not be technically trained in the relevant substantive field, the EAR recognizes no such distinctions when it comes to
controlled technology.

Simply having access to the entire system creates the possibility that IT personnel could visually inspect controlled technical data ¾ enough for a deemed export to occur. Master access by IT personnel also can present significant risks when IT support is outsourced. Some IT
support providers have operations overseas, and U.S. companies may have no control ¾ or even any idea ¾ of the nationality of computer support personnel who might gain access to the system through remote proxy or on-site support visits. Companies that have controlled
technical data stored on their computer systems should be sure that any grant of master access to its own or outsourced computer support personnel complies with its policies and procedures on deemed exports.


V. ALLOW ABOUT THREE MONTHS FOR OBTAINING A "DEEMED EXPORT" LICENSE.

In determining whether a license is required, it is important to focus on whether the technology is controlled due to its listing on the EAR’s Commerce Control List or the ITAR’s Munitions List. Release of ITAR-controlled technology requires a license to virtually all foreign
nationals, with very limited exceptions. For EAR-controlled technology, the combination of the level of technology involved and the foreign national’s home country will determine whether a license is required. The release of highly sensitive technology, such as nuclear and
missile technology, is tightly controlled and virtually all foreign nationals will require a license. The release of less sensitive EAR-controlled technology, however, often does not require a license for many foreign nationals, such as nationals of the European Union, Australia ,
Japan and other close U.S. allies.
If a license is required, the company will need to submit a license application to either the Commerce Department or the State Department to obtain authorization to release the controlled technology to the foreign national in question.

A. Commerce Department Licenses Can Take 90 Days or Longer.

The Commerce Department attempts to process license applications within 60 days, but deemed export license applications often take longer. It is not unusual for processing to take 90 days or longer, particularly applications involving foreign nationals from embargoed
countries or countries of proliferation concern such as China , India , Pakistan , and Israel .[Note #2]

B. State Department Licenses Typically Take At Least 60 Days.

For military items controlled by the State Department, licensing in the employment context generally is handled through a Technical Assistance Agreement (“TAA”). A TAA is an agreement between the company releasing the controlled technical data and the foreign national
setting forth the parameters of the technical data to be disclosed and imposing limits on its use and re-transfer. TAAs are subject to very specific regulatory requirements and must contain certain clauses mandated by the ITAR. The State Department’s Directorate of Defense
Trade Controls (“DDTC”) must approve the TAA prior to any transfer of controlled technical data. Subsequent amendments to the scope of technology involved also must be pre-authorized by DDTC. Requirements for TAAs can be found at 22 C.F.R. § 124. It is customary to
include a current resume, as well as basic biographical information about the individual involved in the TAA. Gaps in employment history commonly lead to further inquiry by DDTC. Licensing times are generally 60 days or more for TAAs.


VI. ENFORCEMENT IS INCREASING.

Given the broad government concern about terrorists entering the United States , various government agencies are looking at foreign nationals and, consequently, deemed exports. BIS has made increased enforcement of the deemed export rule a priority for 2003. See Bureau of
Industry and Security, Annual Report Fiscal Year 2002, at p. 14. [Note 3] Anecdotal reports have surfaced in the export community that indicate that BIS has begun to monitor applications for “H” visas more closely. BIS has conducted sporadic spot checks of foreign
nationals granted “H” visas who have accepted employment in sensitive industries, including interviews with their employers.

At the end of 2001, Customs launched Operation Shield America designed to prevent international terrorist organizations from obtaining sensitive U.S. technology, weapons, and other equipment that could help them carry out attacks. As a result of Operation Shield America ,
Customs has stepped up its Export Enforcement Program and its focus on deemed exports. Companies are receiving visits from Customs officials inquiring about foreign nationals and there is increased emphasis on deemed exports.

Finally, the FBI also has become interested in deemed export issues because of the terrorism angle. It provides leadership through the Joint Terrorism Task Forces that are composed of various federal, state and local agencies (including the U.S. Office of Export Enforcement in
the Commerce Department and various offices in the Department of Homeland Security) in order to provide a comprehensive response to terrorism. As part of its investigative activities, FBI agents have visited large, mainstream companies to inquire about particular foreign
nationals, the projects on which these individuals have been working, and whether the foreign nationals are licensed.


VII. AVOID EMPLOYMENT DISCRIMINATION.

Compliance with export controls must not lead to non-compliance with applicable federal, state, and local employment discrimination laws. It is important for immigration counsel to work with human resources to be certain that eligibility to receive deemed exports of
EAR-controlled technology is listed among the conditions of employment for key technical and IT job listings. It also must be made clear on all forms that any information collected regarding an employment applicant’s nationality or citizenship is solely for export control
compliance purposes, and will not be used to unfairly discriminate in the hiring process.


VIII. CONCLUSION.

Immigration lawyers should advise their clients of the increased scrutiny that the U.S. government is giving foreign nationals in the United States . Checking for compliance with the deemed export regulations at the front end of the visa application process will save time and
money in the long run.

Copyright © 2003, American Immigration Law Foundation.
See http://216.25.100.231/copyrightfor information on reprinting this practice advisory.

ENDNOTES

Note #1. While deemed exports to embargoed country nationals are not specifically prohibited in the economic sanctions regulations maintained by the Treasury Department’s Office of Foreign
Assets Control (“OFAC”), at least one interpretation in OFAC’s Iranian Transactions Regulations characterizes the release of technology to a foreign national as an export. See 31 C.F.R. § 560.418.

Note #2. The deemed export license application processing for nationals from embargoed countries (Cuba , Iran , Libya , Sudan) is significantly slower than 90 days. Processing for North Korea and
Syria , which are considered terrorist-supporting countries but not subject to full embargoes, also is extremely slow. To put the timeframes into perspective, application processing times have recently
taken almost a year in some Cuba cases.

Note #3. In response to a request from Congress, the General Accounting Office (“GAO”) recently conducted a review of BIS enforcement of the deemed export rule. The report was generally critical
of the Commerce Department’s enforcement efforts, citing a lack of post-license audits, as well as a large disparity between the number of H-1 visa holders working in potentially sensitive industries
and the number of export licenses requested from and granted by the Commerce Department. See United States General Accounting Office , Export Controls: Department of Commerce Controls over
Transfers of Technology to Foreign Nationals Need Improvement, GAO-02-972 ( Sept. 6, 2002 ).






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Re: too much

Originally posted by reach_honey
info. to read :D
Click to expand...

If you are or planning to be in a KEY TECHNICAL OR IT JOB, it would be beneficial to you. Depending on your country of origin (India for example is in the list of sensitive technology)it may be useful to you also. In general terms it tells you how this country WORKS, what the EAD is not, what the GC is and the like.
 
Thanks Cinta

People should appreciate more actual documents (even lengthy ones) and not hearsay.

I am aware of ITAR. My problem is that I have actually contributed with new ideas to the development of technology, without receiving anything back (even verbally) that was not previously published.

I don't come from one of those countries on the export list-my country is a NATO member.

Like you said, it's probably just an old guy who just doesn't want to process my file.

I can't remember how the actual security check (not IBIS) is done: is the file forwarded to local or national FBI center, and the answer is mailed back? Damn, so many things we don't know!
 
Re: Thanks Cinta

Originally posted by rav8tor
People should appreciate more actual documents (even lengthy ones) and not hearsay.

I am aware of ITAR. My problem is that I have actually contributed with new ideas to the development of technology, without receiving anything back (even verbally) that was not previously published.

I don't come from one of those countries on the export list-my country is a NATO member.

Like you said, it's probably just an old guy who just doesn't want to process my file.

I can't remember how the actual security check (not IBIS) is done: is the file forwarded to local or national FBI center, and the answer is mailed back? Damn, so many things we don't know!
Click to expand...

rav8tor,

Most of the people on this forum and others are not in positions that require this kind of knowledge. They may come across these things or not..it depends.
From what I understand, they are trying to connect all the databases and do everything electronically. The status of this effort is unknown. As far as NATO countries are concerned they are treated a little bit softer but still all the regulations apply. I had a friend from England who used to work with me on H1-B and GC later. He wrote a lot of designs for the project but when he was working for the company he needed special license to access this information from the State Department and not everything! Only the GC took control of all these.
Cheers.

Interesting

link:http://www.maggio-kattar.com/html/immigration/april2003.html

If you were "fingerprinted" in the past for say a professional reason, your fingerprints are in the National Crime database and a "hit" may occur but it does not tell the reason...
 
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Re: AILA's testimony

Originally posted by cinta
http://www.aila.org/contentViewer.aspx?bc=10,911,576,3048
Click to expand...

IBIS procedure explained,

IBIS Procedure

INS performs background checks using the "IBIS" database for all types of
applications and petitions, whether filed at the regional Service Centers or
the local District Offices. These checks occur within 15 days of receiving
the case and remain valid for 35 days. If the adjudication occurs more than
35 days after the IBIS check, a new check is required.

These timeframes can become an issue for Adjustment of Status (I-485)
applications. In those cases, the Service Center sends an approval notice
directing the applicant to the Local District Office for a passport stamp. If
the passport stamp is done within 35 days of the last IBIS check, no
additional check is needed. If a further IBIS check is needed before the
passport can be stamped, it may take only a day at many of the local
offices. However, if the check results in a "hit" (a match with a record on file
of a person with a criminal issue or other serious problem) the case may
take much longer to resolve.

Note that, since IBIS is a name check system, if one has a very common
name there may be a "hit" based on the record of some other person who
happens to have the same name. In the event of a hit, the local office is
required to place a stamp in the passport as evidence of permanent
resident status, valid for 30 days only. This stamp will provide evidence of
authorization to work and will allow travel for the 30-day period. No mention
was made regarding procedures if the matter is not cleared up within 30
days but, presumably, the person could obtain another stamp if needed.
 
Security checks update

Here is an update on the Security checks. NO PROGRESS. INCOMPETENCE. In the meantime we are all suspects in the eyes of the BCIS.

DHS Watch : Watch List Consolidation Not Complete

DHS Deputy Secretary Gordon England has indicated that the
consolidation of a dozen government watch lists is still incomplete. These
watch lists have been stored on computers and in programs that were not
designed for the networking of information. This has made it difficult to
merge the data. This information was released in a GovExec.com article
published in late August 2003.

Such problems do not mean that security checks are incomplete. What it
means is that security checks are slow, as multiple databases are
involved. The lack of a comprehensive watch list may mean that security
checks will continue to be slow until the consolidation has been
accomplished. DHS continues to make progress on the consolidation plan.
It is unclear, however, whether Mr. England will still be with DHS when the
project has concluded. President Bush has nominated Mr. England to
return to his position as the Secretary of the Navy, a position he held for
two years prior to moving to DHS in early 2003. Mr. England is not
expected to leave his current position until a replacement is selected and
installed.
 
Security checks revisited

The infamous SECURITY CHECKS, to bring the good guys IN and keep the bad guys OUT, as the USCIS Director put it. They forgot that we are here on American soil for so long....
 
AS the USCIS director said it: These are done at the FRONT AND THE BACK of the adjudication process, with no more money and people and forget about the constitution and the legality of all these!


Impact of Security checks for Consulates: Visa delays.
http://msnbc.msn.com/id/3720322/
 
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