International – Page 2

March 20, 2014 by Rebecca Esmi

Happy Nowruz OFAC policy warms with new General License G

On March 19, 2014 in a gesture of rapprochement that may be timed to coincide with Persian New Year “Nowruz,” Deputy Director Barbara Hammerle introduced the debut of General License G (GLG). The new GLG reflects a warming of educational policy and high-lights are summarized below, but perhaps the most notable change is that it authorizes banks and private lenders to transact funds transfers and process student loan payments from persons in Iran. Notes 2 and 3.

Summary high-lights:

a. Accredited post-secondary institutions can enter into academic exchange programs with those in Iran;

b. Educational services.

1. U.S. academic institutions and their contractors are authorized to export their services:

(i) As to filing and processing applications and accepting payment for same, as well as for tuition, from persons in Iran (or residents of Iran);

(ii) To recruit, hire, or employ Iranian nationals as teachers so long as the proper visa is obtained;

(iii) Providing selected undergraduate coursework through online learning to Iranian nationals;

2. U.S. students may participate in coursework in Iran in selected fields or participate in noncommercial research.

3. In support of several charitable educational activities such as educational reform, access to education, and the cultivation of literacy.

4. U.S. persons are authorized to administer to Iranian nationals professional certificate exams as well as university entrance exams, to include standardized multiple-choice, and provide all ancillary services needed to matriculate a student at a U.S. institution.

The GLG likewise allows the exportation of software and hardware that supports personal communication (Note 5), which is already in place, but also authorizes U.S. persons to participate in publishing-related activities. Note 4. As always when it comes to OFAC matters, great care must be taken to comply with all rules; e.g., here it should be noted that exportation of technology in contravention with EAR99 are expressly prohibited.

December 5, 2013 by Rebecca Esmi

Federal IGA waiver recommendations: Alphabet Soup.

There are numerous areas and populations in the U.S. that are under-served by physicians. Forecasters predict that this situation will only worsen in the coming years, largely due to the triple threat of demographics (aging boomers), healthcare reform, and reimbursement policy changes.

An ideal means of providing physicians to cover the underserved is through the various immigration programs that enable foreign national medical residents to immigrate to the U.S. Each and every foreign medical resident in the U.S. for graduate medical education (GME) or training on a J-1 exchange visitor visa is subject to the two-year home residency rule or “two year rule.” See INA 212(e), 212(e)(iii). The rule requires foreign national medical residents to return to their home country for two years before coming back to the U.S. This requirement can present an earth-shattering obstacle to these medical residents who may have put down roots and developed romantic and business relationships that call for them to stay here.

Federal interested governmental agency (IGA) programs are one of the win-win immigration programs that enable foreign national medical residents to immigrate by having these physicians serve the underserved, typically for a minimum of three years before applying for permanent residency. A full listing of IGAs can be accessed in The United States Government Manual at: www.gpoaccess.gov/gmanual/browse-gm-06.html.

The IGA’s role is to recommend to the U.S. Department of State (DOS) that the two year rule be waived for a particular foreign national medical resident. After analyzing the recommendation as to policy and program and assuming concurrence, the DOS seconds its approval to USCIS – the final decision-maker in the process. See INA 212(e). The specifications vary greatly by program, and several of the more well-known IGA programs include:

Department of Veterans Affairs (VA) – see www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=1219

Department of Health and Human Services (HHS) – see www.globalhealth.gov/exchangevisitorprogram/index.html (Supplement B – Clinical Care)

Appalachian Regional Commission (ARC) – see www.arc.gov/index.do?nodeId=24

Delta Regional Authority (DRA) – see www.dra.gov/programs/doctors/

December 4, 2013 by Rebecca Esmi

Foreign national physicians, medical residents, and J-1 visas: the two year rule

Foreign nationals in the U.S. as medical residents are generally here as J-1exchange visitors. Each and every exchange visitor here for graduate medical education or training is required to return to their home country for two years prior to return to the U.S. Known as the “two year rule,” this requirement can be earth-shattering for medical residents as it precludes receipt of an H-, L-, or K- nonimmigrant visa or green card. See INA 212(e), 212(e)(iii), 8 U.S.C. Sec. 1101 et seq. In fact, many may want to remain in the U.S. as practicing physicians — likely having put down roots, formed a romantic alliance, and/or identified fruitful business prospects. And their continued presence certainly benefits the U.S. as physician shortages here are forecast to deepen over time.

All is not lost. Various programs are in place to allow foreign national physicians to immigrate to the U.S. by waiving the two year rule. Some of the more robust programs posit an interested federal or state governmental agency (IGA) as a key player. The IGA’s role is to recommend that the U.S. Department of State (DOS) waive the two year rule. See INA Sec. 212(e). After the IGA’s application is reviewed, and assuming the application survives program and policy scrutiny, the DOS will make its recommendation to USCIS – the final arbiter. The remaining non-IGA options include fear of persecution, exceptional hardship to a U.S. citizen or permanent resident spouse or child, and self-petitions as an alien of extraordinary ability and national interest waiver.

August 16, 2013 by Rebecca Esmi

OFAC General License D: EARs, ECCNs, and other data-designations.

To be exportable under OFAC General License D, software, hardware, and services must bear a specific categorization based upon the type of device, technology, and purpose. Specifically, the designation must be either: (1) EAR99 pursuant to Export Administration Regulation or export control classification number (“ECCN”) 5D992.c by the U.S. Department of Commerce pursuant to its Commerce Control List detailed on supplement No. 1. Additionally, the Annex to General License D details EAR and ECCN designations by eleven categories.

For the uninitiated, EAR and ECCN nomenclature may be quite perplexing, but they are simply ways to categorize exportable items according to degree of risk. For example, items related to ballistics would be high-risk, so must be exported with great care to ensure the items do not fall into the hands of the wrong parties. Alternately, items may be so ubiquitous and “mass market” that it makes little sense to regulate their export since they are found all over the world readily. EAR99, for example, indicates that the items are “NLR” – or no license required. But be forewarned: this doesn’t mean the exporter needs no license! It simply means there is one final check required. This last remaining check is to verify the receiving country is not on the “bad boy” list of countries that give rise to an export or other license requirement.

Iran previously was on this “bad boy” list. But recently, effective with General License D, exports to Iran of software, hardware, and services related to “personal communications” for personal use is NLR — so long as each item is designated EAR99 or ECCN 5D922.c or as designated on the Annex to the General License D. To illustrate, information on Apple’s public website provides ECCNs for its iPhone 5 as 5A992.c. Since Mobile Phones are authorized for export on the Annex to General License D and specifically those categorized as 5A992.c, then an iPhone 5 may be exported to Iran for persona use under General License D.

August 16, 2013 by Rebecca Esmi

OFAC follows the yellow brick road with General License D.

Adam Szubin, Director of the Office of Foreign Assets Control (OFAC) within the U.S. Department of the Treasury recently debuted General License D (“GLD”) which effectuates U.S. exports to Iran of services, hardware, and software incident to “personal communications.” Specific items are detailed on the Annex to the announcement, to include smart phones, tablets, etc. The first glance revealed by pulling aside the curtain might suggest GLD reflects a policy sea-change, as reflecting a departure from prior laws that hardened sanctions on most transactions.

But as was the case with the Metro-Goldwyn-Mayer film version of L. Frank Baum’s novel, the film classic Wizard of Oz, it is much more complex than that. This complexity requires that U.S. entities proceed with caution, as the following two issues show.

First, does General License D really reflect a sea-change? In reality, a review of ITSR shows that GLD is an extension of earlier policies regarding communications and the people of Iran. It should be noted, for example, that the previous iteration of ITSR allowed U.S. entities to export free, publicly-available software. See 31 C.F.R. § 540. Now, permission is being extended to the same items to include those that carry a price tag.

Second, as a practical matter, how can a U.S. company go about exporting services, software, and/or hardware while staying in compliance with the greater regulatory scheme? Remember, there are other laws and regulations in abundance with which U.S. entities and their partners must comply. One set of key laws governs banking transactions . So now GLD permits U.S. entities to export the above to Iran – but pragmatically, how will the U.S. entities manage the physical financial transaction, in light of the OFAC sanctions in place and the many Iranian banks on the SDN black-list.

GLD is certain to further the area’s reliance on the informal hawala money-transfer networks, a consequence that OFAC will presumably not find very desirable. But perhaps OFAC has liberalization of the SDN list in its sights: we will see.

For now, of course, U.S. entities and their partners must be careful to steer clear of the regulatory minefield as they follow the yellow brick road set forth in GLD.