Beginning on February 20, 2011, the U.S. Citizenship and Immigration Services ("USCIS") will require that all employers who wish to submit a Petition for Non-immigrant Worker use an updated version of Form I-129. The new Form I-129 requires U.S. employers to certify their compliance with U.S. export licensing requirements when petitioning for H1B, H1B1, L-1, and O1A visa classifications on behalf of employees. Among other things, the new form requires employers to certify under penalty of perjury their compliance with the U.S. export control laws and regulations. Specifically, employers will have to certify that they have (1) reviewed the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR") and (2) determined whether a license is or is not required before the foreign employee can have access to controlled products or technology.
The two primary sets of U.S. Export Control Laws – EAR, which control all commercial items such as software, medical devices, semiconductors, and computers; and ITAR, which control items specifically designed, developed, configured, adapted, or modified for a defense or intelligence applications – have jurisdiction includes the release of technology or technical data for the development, product, or use of U.S.-origin items to foreign persons in the United States. The term "release" is broadly defined and can occur through visual inspection (such as computer networks), verbal exchanges, or the application abroad of personal knowledge of technical experiences acquired in the United States. A "foreign national" is anyone who is not a U.S. citizen or permanent resident. Anyone holding a temporary visa is treated as a foreign national for these purposes. This includes foreign students seeking advanced degrees from U.S. universities, and any foreign person conducting research at U.S. universities or their affiliates.
U.S. employers have always been required to comply with the "deemed export" rule. The new Form I-129 requirement does not change the rule in any way. It is now a great challenge to U.S. employers who wish to hire foreign nationals. Making inaccurate certifications can expose employers to liability for making false statements to the U.S. government, as well as liability for any underlying export control violations.
Before signing the new Form I-129, employers are encouraged to review their export compliance programs and compliance status in order to ensure that procedures exist for accurately determining (1) whether their commodities and technical data are controlled by the EAR or the ITAR, and (b) whether their foreign national employees (current or future) require access to controlled technologies and technical data. In addition, employers shall set up a procedure to ensure that any necessary licenses are obtained in a timely manner. It is suggested that employer should also consider include language in offer letter that clearly indicate that employment is subject to first obtaining required export control licenses.
By signing the related certification on the Form I-129, employers grant the USCIS the authority to perform audits. Therefore, it is possible that the USCIS or other Federal Agencies acting on their behalf may appear at employers’ doorstep to confirm the compliance. Civil penalties ranging from fines to loss of export privilege, as well as criminal penalties, have been imposed on companies and individual corporate personnel involved in export violations. Furthermore, foreign nationals who participate in an export violation may face exclusion or deportation.