• New Export Control Certification Requirement on Visa Applications
  • December 21, 2010 | Authors: Eby Pineda-Dorcena; Kerry T. Scarlott
  • Law Firm: Goulston & Storrs, A Professional Corporation - Boston Office
  • Beginning on December 23, 2010, the U.S. Citizenship and Immigration Services (“USCIS”) will require that all employers who wish to submit a Petition for a Nonimmigrant Worker use an updated version of Form I-129. Among other things, the new form requires employers to certify under penalty of perjury their compliance with U.S. export control laws and regulations.  Specifically, employers will now have to certify that they have (1) reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”) and (2) determined whether a license is or is not required before the foreign employee can have access to controlled products or technology.

    It is generally well recognized that an export occurs when a physical transfer of an item or technical data occurs across national boundaries. Less well recognized is the so-called “deemed export” rule. This new certification requirement goes to the heart of the rule and makes it critically important that employers of foreign nationals understand and comply with U.S. export control laws and regulations, including the deemed export rule.

    Under the deemed export rule, the release of U.S.-origin products, software or technical data within the United States to a foreign national constitutes an “export” of that item to the home country of the foreign national, even if the item never actually leaves the United States. Such releases are subject to export licensing requirements, and an unauthorized release to a foreign national within the United States constitutes an export violation. The term “release” is broadly defined and can occur through visual inspection (including via computer networks), verbal exchanges, or the application abroad of personal knowledge or technical experience acquired in the United States.  A “foreign national” is anyone who is not a U.S. citizen or permanent resident (i.e., aliens possessing a valid Form I-551 or “green card”). Anyone holding a temporary visa (B, E, F, H-1B, H-3, J-1, L-1, etc.) is treated as a foreign national for these purposes.  This includes foreign students seeking advanced degrees from U.S. universities, and any foreign person conducting research at U.S. universities or their affiliates.

    U.S. employers have always been required to comply with the “deemed export” rule. The new Form I-129 certification requirement does not change the rule in any way.  However, making the certification may prove challenging for employers who wish to hire foreign nationals. Making inaccurate certifications can expose employers to liability for making false statements to the U.S. government, as well as liability for any underlying export control violations.

    Therefore, before signing the new Form I-129, employers are encouraged to review their export compliance programs and compliance status in order to ensure that procedures exist for accurately determining (a) whether their commodities and technical data are controlled by the EAR or the ITAR, and (b) whether their foreign national employees (current or future) require access to controlled technologies and technical data. In addition, procedures must exist for ensuring that any necessary licenses are obtained in a timely manner. Employers should also consider including language in offer letters that clearly indicate that employment is subject to first obtaining required export control licenses.

    What remains to be seen is how the new certification requirement will be enforced by the USCIS. By signing Form I-129, employers grant USCIS the authority to perform audits. Therefore, it is possible that USCIS or other Federal agencies acting on their behalf may appear at an employer’s doorstep to confirm certifications made on the new form. Civil penalties ranging from fines to loss of export privileges, as well as criminal penalties, have been imposed on companies and individual corporate personnel involved in export violations. Moreover, foreign nationals who participate in an export violation may face exclusion or deportation.

    Noncompliance with the deemed export rule is pervasive.  For instance, the U.S. government has reported that just 44 businesses were responsible for submitting 80% of the deemed export license applications during FY2008, despite the fact that hundreds of U.S. companies and institutions conducted operations subject to the rule. In light of the U.S. government’s renewed enforcement focus and the potential for severe penalties for violations, companies and institutions can no longer afford to ignore the deemed export rule.