Legal Alert

H-1B and L-1 Employers Must Certify Compliance with U.S. Export Control laws

December 22, 2010

* Note that the American Immigration Lawyers Association (AILA) issued a news flash this morning indicating that USCIS may suspend the new certification set to go into effect tomorrow (see AILA InfoNet Doc. No. 10122231 (posted Dec. 22, 2010) (subscription required)) – we will update as we receive additional information, but because of the time-sensitive nature of the new certification requirement, we are issuing the following alert.

As if immigration law is not complicated enough, U.S. Citizenship and Immigration Services (USCIS) now requires employers filing Form I-129 (for H-1B, L-1 as well as H-1B1 Chile/Singapore, and O-1A petitions) to understand and certify compliance with the equally complicated export control laws. The new Form I-129 Petition for a Nonimmigrant Worker (effective Dec. 23, 2010) requires employers to review relevant export laws, understand their applicability to the company and the role of the visa applicant, and certify, under penalty of perjury, that the employer has determined that no export license is required or, if a license is required, that the worker will not have access to covered technologies without first obtaining an export license.

Specifically, Part 6 of the new version of Form I-129 states:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

  1. A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
  2. A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

Before checking the box and certifying compliance, employers must first classify the technology or technical data that will be released to, or be accessed by, a prospective foreign national employee to determine whether an export license may be required.

Export classifications and licensing determinations can be complex. An employer should discuss export control requirements with an in-house expert or counsel with expertise in export control law before making this certification, as civil and criminal penalties may be imposed on petitioners and their representatives for misrepresentations made on Form I-129. Petitioners and their representatives should make sure that the Part 6 certification is accurate in every respect.

Under the EAR (15 CFR Parts 770-774), technology may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end user and end use.

Under the ITAR (22 CFR Parts 120-130), technical data generally related to defense articles may be subject to export licensing and other restrictions, depending on the nature of the technology and the destination. Both the EAR and ITAR treat the release of controlled technology or technical data to foreign nationals in the United States as an export – even if provided to them by their employer. See 15 CFR § 734.2(b)(2)(ii)); 22 CFR § 120.17(a)(3). Therefore, if an export license would be required to export EAR-controlled technology or ITAR-controlled technical data to a certain country, an export license would be required to disclose that technology or technical data to a foreign national of that country who is located in the United States. This “deemed export” rule makes it critically important that employers who only do business within the United States understand that they may be engaging in the “export” of technology if they employ foreign nationals.

Although export control law has not changed, and the limitations on the release of controlled technologies and technical data to foreign persons in the United States have existed for many years, this is the first time that the USCIS has become involved in the export license process by requiring employers to make certifications regarding compliance with this process in their visa petitions. As a result, companies that may not have considered export control issues will now have to do so.

This new requirement should also serve as a reminder to all companies that have technology or technical data subject to the EAR or ITAR to include a review of their H-1B petitions and all I-9 Forms, as part of the regular export compliance program to ensure that they are not running afoul of export controls by providing information to their own employees within the United States.

Organizations must now develop a process to complete the required export control analysis so they can certify compliance in their nonimmigrant worker petitions. McGuireWoods LLP has lawyers with experience in immigration and export control law who welcome the opportunity to help clients establish an effective program to ensure compliance.