It’s all foreign to me

That friendly Greek guy in the office with the fabulous accent and the interesting stories about life in Europe may actually be putting your company at risk for violating certain U.S. laws related to exports.

Starting Feb. 20, U.S. employers that complete I-129 forms to obtain work visas for foreign professionals will be required to certify that they have reviewed and are in compliance with export-related regulations. In some cases, this may require obtaining a license to address “deemed exports.”

A “deemed export” occurs when technology is released to a foreign national visa holder in the United States. The release is considered an export of the technology to the foreign worker’s country of birth or residence. Depending on the technology at issue and the foreign national’s associated country, such an export may require a license from the U.S. Department of Commerce under the Export Administration Regulations (EAR), the U.S. Department of State under the International Traffic in Arms Regulations (ITAR), or the Department of Energy for certain nuclear-related information.

Companies failing to complete the new certification after full implementation will likely face rejection of applications. Failure to accurately complete the certification may result in fines and/or penalties for false statements.

The change to the form came as part of the Obama Administration’s export control reform initiative. Collection of the new compliance certification will be undertaken by the U.S. Citizenship and Immigration Service (USCIS). The Form I-129, Petition for Nonimmigrant Worker, has been revised to include a new Part 6 that specifically addresses EAR and ITAR compliance. The new certification applies to employers petitioning for potential workers (beneficiaries) in H-1B (specialty occupation professionals), H-1B1 (free trade specialty occupation professionals from Singapore or Chile), L-1 (intra-company transferees) or O-1A (aliens of extraordinary ability).

Due to the technical nature of U.S. export regulations and the complexity of determining export licensing requirements for foreign employees, companies are advised to closely assess the job scope of any potential foreign employee to identify the need for access by the new employee to export controlled items, technical data, or services. This assessment must be done before submission of the I-129 form.
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Dave Glynn and Lizbeth Rodriguez practice export control and trade sanctions law in the Denver office of the law firm Holland & Hart. They offer counseling and advice to clients on compliance, investigations, enforcement, and penalty mitigation and have been at the forefront of several seminal export control and trade sanction investigations and enforcement actions. They can be reached at [email protected] and [email protected].