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Employers Required to Make Deemed Export Attestation


December 16, 2010 by Jennifer Hermansky

Effective on December 23, 2010, U.S. Citizenship and Immigration Services (“USCIS”) is requiring the use of a new Form I-129, Petition for a Nonimmigrant Worker, to file nonimmigrant petitions for employees in categories such as H-1B, L-1 and O-1.  The new form contains several changes to previous editions of the form, including being more detailed about the location of the employee’s work.  Most notably it requires certain petitioning employers to make an export control license attestation regarding the sponsored employee.  The so-called “deemed export” attestation is made by H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners only.

Part 6 of Form I-129 contains the new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.”  The new Certification requires the employer to certify that it has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”).  The employer certifies, with respect to any technology to which the employee will have access on the job, that a license from the Department of Commerce or Department of State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained).

What Are the EAR and ITAR Regulations?

The EAR regulations (found at 15 CFR Parts 770-774) and the ITAR regulations (found at 22 CFR Parts 120-130) prevent controlled technology with sensitive military, law enforcement, anti-terrorism, or similar applications from being exported or released to other countries.  An employer who releases controlled technology or technical data to a foreign national in the course of his or her employment, even if the employment is in the United States, is deemed to have “exported” that technology to the person’s country or countries of citizenship.  More detailed information on the topic of “deemed exports” is available from the Department of Commerce’s deemed export page.  The EAR and ITAR regulations require employers to obtain export control licenses before releasing controlled technology or technical data to foreign nationals in the United States.

Which Employers Are Likely to Require Licenses?

Employers who are military contractors or subcontractors are most likely to be affected, but both universities and private employers will be affected by the changes to Form I-129.  In general, most types of commercially-available technology are not controlled under the EAR and ITAR regulations, or are exempted from the licensing requirement because they are commercially available.  However, employers dealing with certain advanced scientific and manufacturing equipment, as well as certain software and software systems, may 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 its normal, civilian uses.

What Additional Responsibilities Are Required Now of All Petitioning Employers?

With the new I-129, all employers sponsoring H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants must now determine whether an export control license is needed for the nonimmigrant employee before the petition can be prepared.  Employers may be able to make such a determination for all employees of a particular type; for example, if an employer only hires physical and occupational therapists on H-1B visas, the employer may be able to consult an export control lawyer, or obtain an advisory opinion from the Department of Commerce, that such employment does not involve controlled technologies.  For other employees, a case-by-case assessment with the assistance of an export control lawyer may be necessary.

Personnel responsible for H-1B petitions also must determine the appropriate person within the organization to contact regarding the organization’s export control compliance, who can help identify whether the technology and technical data that will be used by or available to the alien beneficiary in the course of his or her employment is controlled under the EAR and ITAR regulations.  Your Klasko Law attorney can work with your in-house export control compliance specialist to help develop a protocol between Human Resources, General Counsel and others involved in the immigration process to document that the organization has reviewed the issue and determined that no license is necessary.  If your organization does not have that capability in-house, we can help your organization select outside counsel to make an initial determination regarding export compliance, and help establish a clearance protocol with them if necessary.

The protocol developed will enable employer to document how and when the EAR and ITAR determination was made, and to keep that information in the H-1B employee’s file, should it ever be requested.  Such documentation will then be available in the case of an audit, a site visit or a request for evidence pertaining to the employer’s export control compliance.

The deemed export control regulations are complex, but your Klasko Law attorney can help your organization get ready for the new attestations on Form I-129.  If your organization sponsors H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants, contact us to determine how the deemed export attestation will affect your organization’s immigration compliance.

 
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