As part of the trend toward requiring more extensive export control due diligence, US Citizenship and Immigration Services (USCIS) has announced a new requirement for employers petitioning to sponsor individuals in H-1B, H-1B1, L-1 or O-1A status to certify that the company is complying with export control laws with regard to the release of technology or technical data regarding the development, production, or use of an item regulated by US export control laws to that individual.

The US Department of State’s International Traffic in Arms Regulations (ITAR) and the US Department of Commerce’s Export Administration Regulations (EAR) prohibit the release of certain information to a “foreign person” (such as a person with H-1B, H-1B1, L-1, or O-1A status) without an appropriate export license, and any such release “is deemed to be an export to the home country or countries of the foreign national.” This is known as a “deemed export.” Depending on the employee’s nationality, an export license may be required if the foreign person could be exposed to controlled technology or technical data, such as through visual inspection, e-mails, oral exchanges of information, access to computer system, or plant tours. Criminal and civil penalties may apply if the foreign national is allowed access to controlled technology or technical data without a license.

Effective Dec. 22, 2010, a petitioner filing USCIS Form I-129, Petition for Nonimmigrant Worker, for H-1B, H-1B1, L-1, or O-1A visa statuses must certify that it has determined whether the individual needs a license and must answer whether “a license is not required from either the US Department of Commerce or US Department of State to release such technology or technical data to the foreign person” or “a license is required from the US Department of Commerce and/or US 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.”

In practical terms, this means employers must identify controlled technology and technical data (what is controlled and to which countries), and determine whether the job requires or would permit access to controlled technology or technical data, by any means. In case of an audit, employers must be prepared to show why the technology was not subject to export controls, that access was restricted, or that any necessary licenses were obtained. Business, legal, compliance, and human resources teams will need to be involved in these reviews and petitions.

This new USCIS requirement is further evidence of the trend toward increased coordination among agencies in the area of export controls, particularly enforcement. Arent Fox’s Immigration and Export Controls Practice can assist you in determining whether any foreign national employees need licenses, navigating the application process, or enhancing your deemed export compliance procedures. For further information, please contact any of the Arent Fox attorneys indicated below or your regular Arent Fox counsel. Thank you.