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Employers Must Know Export Control Rules When Sponsoring Employees

Beginning December 23, 2010, the new I-129 form goes into effect. This form is used for H-1B, H-1B1, L-1 and O-1A visa petitions concerning professional/specialty occupation, intracompany transferee, and extraordinary ability employees. A new set of questions ask the employer to certify that the employer has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and has determined that either a license is not required or that if one is required, the employer has received the license or that the employer will prevent the foreign employee from having access to the restricted technology until it has the license.

The “export” of controlled technology and technical data by foreign nationals is strictly prohibited without a license. This applies even if the company does not have other exporting activities. Technology is considered “released” for export or a “deemed export” when made available to the foreign national employee through visual inspection, when technology is exchanged orally or is made available by practice or application under the guidance of others with such knowledge. This is a particularly complicated area of law involving several enforcement organizations. Several technology lists may have to be consulted: Export Administration Regulations (EAR), Commerce Control List (CCL), International Traffic in Arms Regulations (ITAR), U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers EAR while the Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR. Any misrepresentation about the petitioning employer’s liability for a license is also a violation of federal law.

Some resources for employers are Export Control Basics, Deemed Exports, ITAR rules and how to apply for a license. As a Seattle immigration lawyer, I am familiar with these work visa categories and new requirements. The export control rules have been around for awhile, but they have previously come up in our practice when preparing for visa interviews at U.S. consulates abroad where higher level security checks are run on visa applicants whose work may involve export technology issues. Periodically, my clients and colleagues in the field have experienced additional visa processing delays due to the Technology Alert List, which can trigger higher level security checks. The new forms, however, require the employer to become more involved in the issue earlier in the process, although they should be dealing with export license issues in the regular course of business if subject to the rules. Now, employers not dealing with sensitive technologies will have to know the rules because they must verify and certify under penalty of perjury that they are indeed not subject to the licensing requirements.