Export Control Attestations required for H-1B, L-1 and O-1 Petitions

On November 23, 2010, United States Citizenship and Immigration Services (USCIS) issued a new version of its Form I-129 Nonimmigrant Petition -- the form used to sponsor foreign nationals for most nonimmigrant visas. The new form must be used for all petitions filed on or after December 23, 2010.

In a significant change, the new I-129 form now requires employers who are filing for H, L or O visas to attest as to whether the employment of the foreign national employee requires an export license. As explained in detail below, an employer who provides to its foreign national employee access to certain technology or technical data would be considered to have exported that technology or technical data, and such “deemed” export could be subject to a requirement of licensure under either the International Traffic in Arms Regulations (ITAR) or the Export Administration Regulations (EAR).

Under the language of the new I-129 form, the petitioning employer must attest that it has reviewed the EAR and ITAR and must then certify that either:

(i) A license is not required from either [the] U.S. Department of Commerce or the   U.S. Department of State to release such technology or technical data to the foreign person; or

(ii) A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary [foreign national employee] and the petitioner [employer] will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

Background on ITAR and EAR

International Traffic in Arms Regulations (ITAR). As its name implies, the ITAR govern the export of defense-related articles and technology or technical data. Administered by the Directorate of Defense Trade Controls (DDTC) of the Department of State, the ITAR requires persons to obtain the approval of the DDTC, typically by way of a license, before exporting defense-related articles or technology/technical data. Any foreign national employee -- irrespective of nationality -- would need a license in order to be exposed to defense-related articles and technology/technical data.

The main link to the ITAR is found here. More detailed information about the ITAR’s requirements regarding the release of articles and technical data can be found here. Finally, the articles and technology/technical data that are controlled for release to foreign nationals are identified on the ITAR’s U.S. Munitions List (USML), located here.

Export Administration Regulations (EAR). The EAR governs the export of non-defense-related articles and technology or technical data. Administered by the Bureau of Industry and Security (BIS) of the Department of Commerce, the EAR licensing scheme is more complex than the ITAR scheme. The EAR may -- or may not -- require an export license for non-defense related articles or technology/technical data. Whether the EAR requires approval depends on the nature of the article or technical data and the country of destination. Generally, the more sophisticated the item, and the less friendly the country of destination is to U.S. interests, the more likely it is that a license will be required.

To determine whether a license is required, the employer must first identify the nature of the item by identifying the Export Control Classification Number (ECCN) covering the item. The articles and technology/technical data that are controlled for release to foreign nationals are identified on the EAR’s Commerce Control List (CCL), located here. The employer must then consult the Country Chart to determine if approval to export to the country in question is required.

Background information about the EAR and the method to apply for a deemed export license can be found here. Information about EAR’s requirements regarding the release of articles or technology/technical data to foreign nationals is available here.

Relevance to H-1B, L-1 and O-1 Petitions

As above indicated, both ITAR and EAR define “export” to include not only sending technology or technical data outside of the United States but also providing access to technology or technical data to persons who are not citizens or permanent residents of the United States. Thus, an employer who will provide the foreign national employee with access to technology or technical data is considered to be “exporting” such data to the foreign person -- with the foreign person’s nationality (and in some cases the person’s country of birth) considered to be the country of destination.

The new form I-129 does not establish the licensure requirements; rather, the ITAR and EAR establish those requirements independently of the new form. The form I-129 revisions are important, however, in that they in effect place the employer on notice of the ITAR and EAR requirements. As such, an employer who provides a foreign national with access to controlled technology or technical data without the required license is less likely to prevail in asserting that the violation was done in innocent ignorance of the requirements. Further, if the employer falsely certifies, or certifies in reckless disregard of the truth of the certification, the employer (as well as the individual signing the form) may incur liability for having made a false certification.

Conclusion

Export control issues are extremely complex. The new form I-129 raises awareness regarding the need for export licenses in the context of hiring foreign national employees, and the licensing issue must be addressed with each H-1B, L-1 or O-1 filing. Employers who file H, L and O visa requests will need to identify resources (either internal or external) to assist in making the deemed export attestation that is now required. Seyfarth Shaw’s Government Contracts Practice provides sophisticated advice and counseling on export control issues and stands ready to work in conjunction with our Business Immigration Group in order to assist employers in addressing these issues. We are available immediately with strategic evaluation, advice, and development of policies to ensure compliance in this area.

For more information, please contact the Seyfarth immigration attorney with whom you work, or any Business Immigration attorney on our website.