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Home Back Issues No. 3: Research Compliance: Foreign Student Permitted on Project?

Nov 16

No. 3: Research Compliance: Foreign Student Permitted on Project?

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Reader Question: We have a new scientist coming to my lab from China, but a corporate sponsor of our research only wants U.S. citizens working on the project. We aren’t doing any kind of top secret or classified work, so this request came as a real surprise to us. Does the sponsor have a right to do this? Are there any other things we need to be aware of in having a non-U.S. citizen working in our lab?

Expert Comments: The sponsor might have a legitimate reason to be concerned. U.S. export control regulations can limit who works on certain research projects, and sponsors often do require that only U.S. citizens work on projects that are subject to those export controls. But perhaps you’re not doing any of the research outside the United States, so where’s the “export” part that causes worry?

Strangely enough, export control regulations also may apply to activities that take place inside the United States. Specifically, they may apply to “deemed exports,” which are the transfer, inside the U.S., of information or technology to a foreign national (a non-U.S. citizen or permanent resident). Further, the technology doesn’t have to be top secret or classified for export control regulations to apply.

In a nutshell, export control regulations come in three “flavors”:

(a) U.S. State Department’s International Traffic in Arms Regulations (ITAR), which cover defense-related items, services and technical data;

(b) U.S. Department of the Treasury’s Office of Foreign Assets Controls regulations (OFAC), which may prohibit payments to certain embargoed countries or to companies/individuals on the Specially Designated Nationals List (SDNL); and

(c) U.S. Department of Commerce’s Export Administration Regulations (EAR), which cover “dual-use” items and technology (i.e., ,materials with potential commercial and military/security applications).

If an item or technology is subject to export control regulations and no exclusion or exception applies, then you may have to get a license from the U.S. government to take the item/technology outside of the United States, or to have a foreign national work on it inside the United States.

Of course, a great deal of research is not subject to export control regulations because exclusions apply. For instance, there are exclusions for information that is publically available, educational information taught in academic courses, and patent information. The most important exclusion in the research arena is the Fundamental Research Exclusion (FRE). The FRE covers “basic and applied research in science and engineering when the resulting information is ordinarily published and broadly shared within the scientific community.” The exclusion permits fundamental research to be done by foreign nationals in the U.S. without having to get an export license.

If you’re not actually sending anything outside of the U.S. or working on military research, “deemed exports” under the EAR regulations are your main concern. Given that your sponsor has specifically requested that only U.S. citizens work on the project, chances are good that the sponsor has a government contract in which it agreed that the research is subject to export controls. When a contract like this is in place, it’s time to say good-bye to the FRE (or any other exclusion), and instead make sure you have enough U.S. citizens to staff your project.

Further, even if the contract specifically doesn’t mandate the use of U.S. citizens to do the work, if it contains publication and data sharing restrictions, the result is the same because such restrictions negate the FRE. To avoid this situation, make sure that you read your sponsor’s contract in advance and delete personnel and publication restrictions so you can fall under the FRE. Remember, if you have a subcontract from a sponsor, you also need to read the sponsor’s underlying contract too.

Finally, if you’re planning on paying your new researcher from China a salary or stipend, you also need to think about the OFAC payment regulations. Although China’s not an embargoed country like Cuba or North Korea, you still need to make sure that the researcher is not a person to whom the United States has prohibited the “transfer of anything of value.” You can do this by checking to see if your new researcher’s name is on the SDNL on OFAC’s website (http://www.treas.gov/offices/enforcement/ofac/sdn/index.shtml). When you check, make sure you look for alternate spellings, and make sure you include in your project file documentation of the fact that you conducted this check. Print out the results page and make any appropriate notations regarding when you searched, the names you entered, and any information obtained.

Failing to follow export control regulations can lead to some stiff civil and/or criminal penalties. So it’s important to keep these requirements in mind whenever working on research projects with foreign nationals, even if all the work actually happens in the U.S.

Comments by Kristin H. West, J.D., Associate V.P. and Director, Office of Research Compliance, Emory University Atlanta

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Comments (6)
written by Anonymous, November 11, 2009
If the sponsor is providing their money, they have the right to request what they want. However, you also have the right to hire whoever you want. You just might not be able to staff this person on their project.
written by Sinese, November 18, 2009
I wonder if the appearance of this question was timed to coincide with the visit of President Obama to China? Do Chinese universities allow foreigners to work in their research laboratories?
written by Naidu, November 19, 2009
Distressed by this approach to foreigners. Many who became citizens were foreigners once.
written by Fed up, November 30, 2009
Rules like this destroyed my research career. I did not have a U.S. Citizenship after graduate school, and all research postdocs I applied for required citizenship. Now, five years later, I am a citizen but its too late to restart my research career.
written by Dr. Deek, December 02, 2009
Regarding the first response: The question does not suggest that the project is monitored, classified or otherwise subject to the laws cited. This is a publically available research project accept, presumably as such by the applicant organization who has no right to circumvent the terms of the individual involved for the sake of some corporate interest. Absent any suggestion or condition of funding that apply to all similar studies of the applicant organization, the applicant organization would be in violation of the Civil Rights Act of 1964 as Amended if the emoloyee was excluded from the study due to National Origon. I do not believe the condition ""only American Citizens can be involved in the study"" can be accepted as a condition for funding such a project. An employee is an employee, and all employees enjoy the same rights regardless of many things, once hired, these things include citizenship status. Denis English, Ph.D.
written by Dr. Deek, December 02, 2009
To clarify: The Civil Rights act covers all RESIDENTS of the United States, not just citizens. To ""Fed UP""...it is never too late. Write me at [email protected] and do not give up to those whose POLICIES circumvent the law. Denis English, Ph.D.

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