Military contractors and subcontractors are most likely to be affected by a new Form I-129 requirement that is effective on February 20, 2011. However, both universities and private employers may also face additional responsibility surrounding the Petition for a Nonimmigrant Worker, and all should take immediate steps to determine their compliance requirements.
The revised form, required by the U.S. Citizenship and Immigration Services (USCIS), includes a new Part 6—"Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States." It applies only to petitions H-1B, H-1BI Chile Singapore, L-1, and O-1A, which are for temporary workers in a variety of nonimmigrant visa classifications.
Part 6 requires that those who seek to employ and sponsor certain nonimmigrant foreign workers do the following:
- Certify that the employer has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), which aim to prevent controlled technology with sensitive military, law enforcement, anti-terrorism, or similar applications from being exported or released to other countries.
- Certify whether the foreign worker will have access in the workplace to technology and technical data for which an export license is required and, if so, confirm that the employer will prevent such access until an export license or other authorization is obtained.
The EAR and ITAR treat the release of controlled technology and technical data to foreign nationals while they are in the United States as an export to their countries of nationality. Thus, an employer that, even in the ordinary course of employment, releases controlled technology or technical data to a foreign national—even if the employment is in the United States—is deemed to have "exported" that technology. Employers must obtain export control licenses before such releases occur. Specifically, under the "deemed export rule," U.S. entities must apply for an export license when the following applies:
- They intend to release or allow the release of controlled technology or technical data to a foreign national in the United States.
- The release of this technology or technical data to the foreign national's home country would require an export license.
In practice, only certain exports require such a license. Many types of commercially available technology are not controlled under EAR and ITAR or are exempted from the licensing requirement because they are commercially available. However, employers dealing with advanced scientific and manufacturing equipment, or certain software and software systems, are especially likely to be subject to licensing requirements for employees from certain countries, depending on whether the technology has military, law enforcement, or counterterrorism applications in addition to normal, civilian uses.
If an employer is uncertain about whether its activities would trigger export regulations, it can seek a commodity classification from the U.S. Bureau of Industry and Security (BIS), which is responsible for implementing and enforcing the regulations.
Employers that utilize Form I-129 should take immediate steps to determine if an export license is needed (and, in the general interest of best practices, implement appropriate technology safeguards). If a deemed export to the beneficiary of a nonimmigrant petition is anticipated, the employer must apply for, and receive, an export license. If the technology is subject to the EAR, an export license application must be filed with the BIS. If the application is approved, a license number and expiration date will be issued for use on all applicable export documents.
An employer's certification on the Form I-129’s export control question is considered a statement made to the U.S. government. If the government determines that a statement on a Form I-129 is false, it could deny the petition or revoke a previously approved petition, leaving the foreign national without status or work authorization. A false statement to the government can also subject an employer to criminal penalties.
If you have concerns about the new Form I-129 requirements, or questions about the application procedure for export licenses or the effectiveness of your company's compliance program, please contact Beth Moskow-Scholl at 302.252.4447 or firstname.lastname@example.org. A company can mitigate the potential for violations by implementing a compliance program tailored to the nature of its business. In the event that violations may have occurred, prompt due diligence and voluntary disclosures are useful in alleviating penalties.
Copyright © 2011 by Ballard Spahr LLP.
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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.