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Export Control Rules for Work Visas Affect Many to Find a Few

The export control questions on the new I-129 form for H-1B, H-1B1, L-1 and O-1 petitions go into effect this week on February 20. Having to answer the new questions was delayed so that employers could become familiar with the export control regulations. Immigration lawyers are not typically trained in the details of export controls, though we are familiar with the issue in connection with certain types of security clearances for our clients when they are abroad seeking visas. Sometimes clients subject to the Technology Alert List are delayed in getting their security clearances. Petitioners involved in technology, R&D, scientific research, aviation, arms and defense industries, biotechnology, and software development, for example, are usually familiar with the intricate export control rules as a major part of their business. For example, significant users of H and O visas are universities. There is an Association of University Export Control Officers to deal with these issues for scientific researchers.

But other H, L and O businesses involved in activities such as residential architecture, physical therapy, fashion design, elementary school education, international adventure travel, or award winning chefs, actors, writers, cellists, and other industries or occupations are not familiar at all with export controls. The export control rules are person, and therefore job duty specific, as well as country specific in some cases. Now that the questions on the form go into effect during the petition process in the U.S., all employers have to become familiar with the process before starting a visa application. Petitioners need to learn more about this burdensome requirement if they are not already familiar with them in the general course of business.

Recently, I attended a continuing education seminar on the new export control attestations as I would like to be more familiar with this area of law. One of the speakers was from the U.S. Commerce Department. When he was asked how this requirement came about, he indicated that the purpose is to get more employers “thinking about” whether the foreign nationals they hire are indeed subject to export control rules and whether they need to get licenses. However, the Commerce Department expects that only 5% of employers hiring foreign nationals through the H, L and O programs will end up being subject to the EAR or ITAR rules. Yet all the petitioners using these visa programs will be required to make the certification. Consequently, the government has chosen to burden 95% of the petitioners in the program whose offered positions to foreign nationals are most likely not subject to export controls! This increases the cost of doing business for all employers using the specified work visa categories, as they will need to hire export control experts just to confirm that checking the box “not subject” under penalty of perjury is accurate and truthful. Normally, employers look across agencies when starting businesses to determine what regulatory schemes apply to their business. Here, the U.S. Department of Homeland Security that regulates immigration matters has brought into the immigration scheme matters traditionally outside its purview, although together with the State and Commerce Departments it has established an export control center.

Employers will need to sign under penalty of perjury two new attestations on the form: that they have reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and have determined that either 1) a license is not required, or 2) that if one is required, the license has been received or the employer will prevent the foreign employee from having access to the restricted technology or data until the license application is approved. In the latter situation, the employer can still file the petition for the foreign national, but the proposed duties that involve exposure to the controlled technology or data, will have to be delayed until the license is approved. False statements carry criminal and civil penalties. There are also penalties for failure to have an appropriate license. Employers should document for their records that they did indeed consult the EAR and ITAR, and how they arrived at their conclusion that a license is not required or should be sought.

A quick look at the EAR and ITAR web pages show that no easy answer pops out for companies whose position or foreign nationals do not ordinarily need licenses.

To make the certification one way or the other, every employer will need to either review the rules themselves or obtain additional legal or export control consulting advice. It is definitely the full employment bill for export control lawyers or consultants, of which there are few, or else it’s a new area for immigration lawyers to gain expertise. However, it just adds to the cost of pursuing these types of visa categories in order to hire the best and brightest global talent and bring foreign investment into the U.S. Or perhaps it’s just another arrow shot into the work visa program to dissuade U.S. employers from hiring top global talent at all. In the meantime, there are some resources to get started that I will post separately on this blog shortly.

Of course it is important for the U.S. to keep track of who is taking critical knowledge and products abroad. Export controls are a very serious matter for national security. But it is over the top to require every employer to go through this burdensome process through the immigration process, especially small employers or larger companies that only occasionally hire foreign workers in positions where controlled technologies or data are not typically part of the petitioner’s workplace, service or product.