L1A Visa Update – New Petitioner Certification Required to Confirm Export Control Compliance

As of February 20, 2011, the U.S. Citizenship and Immigration Services (USCIS) will require that all employers filing Form I-129 petitions seeking employment of H-1B, H-1B1, L-1 and O-1A workers certify that they have reviewed Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) to ascertain whether or not an export control license is required for the employment. The certification is contained in a revised Form I-129.

More specifically, employers must certify that they have:
(1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and
(2) have made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national.

If an export license is required to be obtained before such release, the employer must attest that the worker will NOT be exposed to covered technologies without first obtaining an export license covering the foreign worker. We wish to make sure that you do not make a misrepresentation on Form I-129 in this regard, which in itself would be a violation of federal law.

Export controls are generally thought of in relation to the transfer of physical technology. However, export controls also encompass the oral and visual disclosure or transfer (by “any means”) of technical data to a foreign person. Controlled technology exists in a wide variety of fields including, but not limited to, biotechnology, materials, imaging, avionics, chemistry, physics, computer security, robotics and urban planning. Foreign persons born or from specific countries are more likely to require an export license for controlled technology – e.g., Iran, Syria, Cuba, Sudan, China, Israel, Russia and the former Soviet republics.

Although the I-129 certification will initially only be required for the above-referenced worker classifications, export controls may apply whenever a foreign person is directly or inadvertently given access to controlled technology. Inadvertent disclosure can occur during telephone, email or fax communications; through visual access to photographs, technical specifications or diagrams; or from computer server access, training sessions, or tours of facilities. Best practices for export compliance may necessitate an organizational-wide technology control policy identifying the criteria for workers’ and visitors’ access to facilities and systems, and their participation in business meetings and phone conferences.

This is a very complex area of the law and we would recommend consulting an attorney with specialized knowledge in this field. If you are a consulting company, please talk to your client and find out if the client knows for a fact whether an export license is required or not for the project that your H-1B Consultant will be working on. If your client is not forthcoming with the information in regards to the export license, we recommend that you consult with an attorney who specializes in this field of law.

To determine the applicability of an export license in the I-129 context requires knowledge of the work duties and environment, including the technology and technical data encountered therein, and the technologies and technical data that are controlled for release to foreign persons. Exemptions may apply for technologies and technical data that is in the public domain, publicly available, already or to be published, fundamental research or educational. Please keep in mind that you have to ascertain the requirement for the export license on a project basis. For example, your H-1B Consultant is working with Client X on Project ABC and it is determined that no license is required. Thereafter, after some time, say one (1) year, the same H-1B Consultant working at Client X begins work on separate Project XYZ, then you must re-determine whether an export license is required for Project XYZ. We must then file an amended H-1B for the H-1B Consultant if it is determined that an export license is required for Project XYZ.

If your organization has not previously addressed this issue or needs assistance in determining whether or not an export license is required for an individual, it should seek legal advice from a qualified attorney.