Employers who sponsor skilled, nonimmigrant foreign workers are experiencing a heavier burden as of February 20, 2011. That’s the effective date for revisions to Form I-129—used to petition the U.S. Citizenship and Immigration Services on behalf of H-1B, H-1BI Chile Singapore, L-1, and
O-1A workers.

Petitioners will now have to certify that they have reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and determined whether they need an export control license to release controlled technology or technical data to workers they seek to sponsor. If a license is required, then employers must further certify that they will not release such material until they obtain the license.

The requirement is based on the "deemed export rule." The EAR and ITAR treat the release of controlled technology and technical data to a foreign worker in the United States as an export to that worker’s country of nationality. Therefore, employers must obtain export control licenses before such releases occur.

In determining whether they need an export control license, employers must review the U.S. Munitions List (USML) and the Commerce Control List (CCL)—to either classify the technology and technical data that will be accessible to a foreign national, or to conclude that neither appears on either list. Employers may have to obtain export classification information from third parties or export classification guidance or rulings from the government to make a determination.

If the government determines that a statement on a Form I-129 is false, it could subject the company to civil penalties for failure to comply with deemed export licensing requirements and to criminal penalties for making a false statement to the government.

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-Schnoll at 302.252.4447 or moskowb@ballardspahr.com, or Tejal K. Mehta at 215.864.8232 or mehtat@ballardspahr.com. 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.


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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.