Employers of Non-US Citizens Need to Comply with Export Rules
Effective February 20, 2011, employers submitting certain Form I-129 petitions for a nonimmigrant classification (for H Temporary Worker, L Intracompany Transferee and O Extraordinary Ability visa petition approvals) to the U.S. Citizenship and Immigration Services (CIS) must certify compliance with "deemed export" rules.
Under U.S. export control laws and regulations, a deemed export is when certain technical or controlled data/information is released by any means, including visual or oral, to non-U.S. citizens (without permanent resident status) when such persons are located in the United States. This rule commonly applies to releases of information in the employer-employee context, but may apply in any situation in which U.S. persons divulge technical information to non-U.S. citizens during business meetings, conference calls, or even office visits.
With this new requirement, employers will be required to indicate on Form I-129 that they have reviewed the applicable export regulations (Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR")) and have made a determination as to the applicability of those regulations with respect to the foreign national employee who is the beneficiary of the employer's I-129 petition. Specifically, the employer must certify that it has reviewed the EAR and the ITAR and check one of the following boxes under Part 6 of the revised form ( here):
- A license is not required from either the U.S. Department of Commerce or U.S. Department of State to release such technology or technical data to the foreign person; or
- A license is required from the U.S. Department of Commerce or U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner 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.
Failure to comply or inaccuracies on the form may be considered as a false statement to the U.S. government and could subject an employer to criminal penalties/sanctions. Furthermore, when necessary, an employer is required to apply for and obtain a license from the U.S. government for such foreign employees before any technical or controlled data is released to the employee. Otherwise, the employer must have in place sufficient safeguards to prevent the access to the controlled technology by any foreign employees.
Troutman Sanders LLP's Trade Compliance Team is available to assist companies in a review of this new requirement, a discussion of what constitutes a "deemed export", and to provide advice regarding the application of U.S. export control laws to any foreign employees.