Member Article

February 20, 2011, will bring a significant additional burden for many employers using the H-1B, H-1B1 Chile/Singapore, L-1 or O-1A category to sponsor a worker. Petitioners, even those entities not typically involved with technology subject to U.S. Government export rules, will be required to make an export control compliance statement under penalty of perjury on USCIS Form I-129. The statement is to certify that the foreign employee will not be allowed access to controlled U.S. technology until all applicable export licenses have been obtained.

Export controls exist to protect U.S. national security and foreign policy interests. They govern the shipment, transmission, or transfer of certain sensitive items, including technical data and software, to foreign persons or entities. Sharing such controlled data with a foreign national, even inside the United States, is considered to be a “deemed export” requiring a U.S. Government export license. The technology at issue is identified on the Export Administration Regulations (EAR) Commerce Control List (CCL) and the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML). The Department of Commerce, Bureau of Industry and Security (BIS), administers the EAR. The Department of State, Directorate of Defense Trade Controls (DDTC), administers the ITAR. While export control plays a vital role in the nation’s security, the legal justification for including on the I-129 form questions not relevant to USCIS’s delegated authorities, but aimed at exploring an employer’s compliance with another government agency’s regulations, is unclear.

The I-129 questions come at a time when the U.S. is working towards overhauling its export control rules and institutions to consolidate enforcement of the EAR and ITAR into one agency. It is anticipated that fewer items will be subject to controls, but those that are controlled will be more closely monitored. In the meantime, on November 9, 2010, President Obama issued Executive Order 13558 establishing an “Export Enforcement Coordination Center” within the Department of Homeland Security (which oversees USCIS operations) to facilitate information-sharing about suspected violations of U.S. export controls and to coordinate efforts to investigate and penalize violators. Civil penalties for non-compliance are severe and can range up to the higher of $250,000 or an amount that is twice the value of the transaction that is the basis of the violation. Criminal penalties for export violations are even more severe, including fines of up to $1 million and imprisonment for up to 20 years.

It is therefore more important than ever for petitioners using the designated immigration categories to exercise due diligence. Immigration coordinators for companies with existing export compliance procedures will need to work with their internal compliance team to confirm compliance under the circumstances of each Form I-129 filed on or after February 20, 2011. Immigration files subject to the export control questions will now need to contain supporting evidence for the export control compliance response on the Form I-129 in the event of a government audit. New companies and those without in-house export control compliance expertise, in particular, should begin now to familiarize themselves with the export control regimes and to determine a method for analyzing and responding to the new questions. For more information, please contact: