On December 23, 2010, U.S. Citizenship and Immigration Services
(USCIS) will introduce an updated version of Form I-129, Petition
for Nonimmigrant Worker. By and large, the publication of a new
form typically generates little fanfare, but the updated form in
this instance includes several important changes, not the least of
which is a new requirement directing employers sponsoring H-1B,
L-1, and O-1 non-immigrants to certify their compliance with the
release of controlled technology or technical data to foreign
nationals in the United States (a/k/a "deemed export"
rule).
The "deemed export" rule governs the release of
controlled technology or technical data to foreign nationals in the
United States. Where a technology is controlled, the employer may
be required to obtain a U.S. export license before the foreign
worker can be granted access to the technology in question.
To certify that a license is not required in order to release
controlled technology or technical data to a foreign national, the
employer must carefully review the Bureau of Industry and
Security's Commerce Control List (CCL) and the Directorate of
Defense Trade Controls' U.S. Munitions List (USML). Employers
must classify their own technology and technical data in the CCL or
USML or conclude that their technology or technical data does not
appear on either list. Employers should not underestimate the
commitment in time and resources that will be required to review
the CCL and USML. While the lists, not surprisingly, identify a
wide range of defense-related components as controlled technology,
they also identify certain types of cameras, machine tools and even
protective shoes among restricted technology.
The new Form I-129 requires employers to certify that they have
reviewed the list of controlled technologies and technical data
from the Export Administration Regulations (EAR) and the
International Traffic in Arms Regulations (ITAR). With regard to
technology or technical data that an employer intends to release to
a foreign national, the new Form I-129 also requires the employer
to certify that an export license is not required, or that a
license is required and will be obtained before the employer
releases the controlled technology to the foreign national.
In addition to classifying their own technology and technical data,
employers are required to classify technology or technical data
generated by third parties (i.e., customers, vendors, etc.), but
that is in the possession of the employer and may be accessible to
the foreign employee. This means employers may have to obtain
export classification information from third parties or obtain
export classification guidance or rulings from the government,
which could be time consuming.
Because USCIS has offered little guidance regarding deemed export
licensing requirements, employers should review their export
control compliance processes as soon as possible or develop and
implement a strategic plan to comply with the new certification
requirements. Employers would be best served to:
- Develop a system for identifying positions that involve access to controlled technology or technical data
- Determine the level of export control compliance internally and establish a mechanism for making certifications in the future
- Develop language in offer letters and/or modify the hiring process to make employment contingent upon the employer's ability to obtain deemed export licenses, if applicable
- Provide training and education internally on deemed export requirements to managers, Human Resources professionals and personnel involved with visa processing for foreign employees
- Develop a procedure for notifying the Human Resources Department of any foreign employees for whom an export license is required
It is not clear at this time how this new certification requirement will be enforced by USCIS. USCIS could conceivably refer some of the certifications to the Bureau of Industry and Security's Office of Export Enforcement (OEE) or USCIS may verify these certification themselves during on-site fraud or audit investigations. While the underlying deemed export rule remains unchanged by the new certification requirement, this will be the first time that employers sponsoring H-1B, L-1 or O-1 nonimmigrant workers will be required to formally certify (under penalty of perjury) their compliance with the deemed export licensing requirements to USCIS.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.