H-1B and L-1 Employers Must Certify Compliance with U.S. Export Control laws

* Note that the American Immigration Lawyers Association (AILA) issued a news flash this morning indicating that USCIS may suspend the new certification set to go into effect tomorrow (see AILA InfoNet Doc. No. 10122231 (posted Dec. 22, 2010) (subscription required)) – we will update as we receive additional information, but because of the time-sensitive nature of the new certification requirement, we are issuing the following alert.

As if immigration law is not complicated enough, U.S. Citizenship and Immigration Services (USCIS) now requires employers filing Form I-129 (for H-1B, L-1 as well as H-1B1 Chile/Singapore, and O-1A petitions) to understand and certify compliance with the equally complicated export control laws. The new Form I-129 Petition for a Nonimmigrant Worker (effective Dec. 23, 2010) requires employers to review relevant export laws, understand their applicability to the company and the role of the visa applicant, and certify, under penalty of perjury, that the employer has determined that no export license is required or, if a license is required, that the worker will not have access to covered technologies without first obtaining an export license.

Specifically, Part 6 of the new version of Form I-129 states:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

A license is not required from either the U.S. Department of Commerce or the 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 and/or the 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. Before checking the box and certifying compliance, employers must first classify the technology or technical data that will be released to, or be accessed by, a prospective foreign national employee to determine whether an export license may be required.

Export classifications and licensing determinations can be complex. An employer should discuss export control requirements...

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