On November 23, 2010, U.S. Citizenship and Immigration Services (“CIS”) published a revised version of Form I-129, Petition for a Nonimmigrant Worker. There are many important changes to this form, but one that may pose a particular challenge to employers seeking H-1B, L-1 and O-1 visas for employees is a new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States” found in Part 6 of the form.

Please click here to view part 6 of the form.

The Instructions for Form I-129 provide a limited explanation of the requirements pertaining to deemed export licensing requirements. Employers who have not previously classified their technology on the U.S. export control lists and implemented an Export Compliance Program will have to get up to speed quickly in order to be in a position to comply with the new Certification requirement.

What Employers Need to Know

Under the U.S. export control laws administered by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”) and by the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”), a deemed export license may be required before controlled technology or technical data is released to a foreign person in the United States. BIS administers the controls that apply to dual-use items which are predominantly commercial items that have a potential defense, nuclear or other prohibited end-use. The dual-use products, software and technology that are controlled by BIS are listed in the Commerce Control List (“CCL”), which is part of the U.S. Export Administration Regulations (“EAR”). The DDTC administers the controls that apply to defense articles which are primarily military items. The defense articles that are controlled by the DDTC are listed in the U.S. Munitions List which is part of the International Traffic in Arms Regulations (“ITAR”).

In order for an employer to certify that a license is not required to release technology or technical data to the foreign person, the employer must have previously reviewed the CCL and the USML carefully and classified its own technology and technical data on the CCL or USML, or have appropriately concluded that its technology or technical data does not appear on either list.

Employers have to classify not only technology and technical data created by them, but also technology or technical data that may have been generated by third parties, such as customers or vendors, but that is in the possession of the employer and may be accessible to the foreign person employee. This may require obtaining export classification information from third parties or even obtaining export classification guidance or rulings from the government, which can be time-consuming.

What Employers Need to Do

The Fact Sheet associated with the new I-129 released by CIS on November 22nd indicates that the old version of the form will be accepted through December 22, 2010. Employers will therefore need to begin preparing to be in a position to accurately respond to the Certification. This will require the implementation of integrated Human Resources and Export Compliance Procedures that include the following key elements:

  • A mechanism for identifying those positions that involve access to controlled technology or technical data;
  • Appropriate language in offer letters that make the offer contingent upon the ability to obtain any required deemed export licenses; and
  • Internal training and education on deemed export requirements for managers, HR professionals, and company personnel involved with visa applications.

Companies with existing Export Compliance Programs will need to review and update those programs to ensure that they are adequately identifying positions that involve access to controlled technology and that a deemed export licensing analysis is being performed. This requires an integrated approach that involves: (1) individual business units and sites where managers who fill new positions or request that such positions be filled through their HR department; (2) HR professionals within the organization; and (3) trade compliance personnel, among others.

Enforcement

It remains to be seen how this Certification will be enforced. CIS has not yet issued guidance on how it plans to verify a petitioner’s Certification that no license is required for the foreign person (Box no. 1) or a petitioner’s Certification that it will prevent access to controlled technology or technical data until and unless the required authorization is received (Box no. 2). With the recently-announced Export Enforcement Coordination Center to be housed within the Department of Homeland Security, it is conceivable that CIS may refer some of the Certifications to BIS’ Office of Export Enforcement (“OEE”) in order for OEE Agents to visit employers to verify their Certifications. It is also conceivable that CIS will itself be verifying these during on-site fraud or audit investigations.

Until further guidance is issued by CIS, BIS and/or DDTC, employers will need to take steps to prepare themselves for verifications that could take a number of different forms. Employers should be particularly diligent in this regard given that the new Certification will be a statement to the U.S. Government affirming review of and compliance with the deemed export rule by employers under penalty of perjury. While the underlying deemed export requirements are not changed by this new Certification requirement, for many employers, this will be the first time they will be required to formally certify compliance with these requirements to the U.S. Government. Such certification statements, if incorrect, could create a basis for the U.S. Government to penalize companies that fail to comply with deemed export licensing requirements.