We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
03 December 2010
From December 22 2010 US employers will be required to certify their compliance with deemed export rules when petitioning for certain non-immigrant work visa classifications on behalf of their employees. US entities that employ individuals requiring such visas should review the adequacy of their export control compliance procedures now to ensure that they are in a position to certify compliance by December 22 2010. Inaccurate certifications may expose employers to liability for false statements to the US government, as well as export control violations.
What changes will employers see to the non-immigrant petition form?
On November 10 2010 US Citizenship and Immigration Services announced the adoption of a revised Form I-129, which employers use to petition for a worker to come to the United States temporarily to perform services or labour or to receive training. The revised form includes a new section entitled "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States". This certification is applicable only to the following visa categories:
What extra steps will employers need to take?
The revised Form I-129 is expected to require US employers to certify that they have considered the deemed export control requirements applicable to the employee for whom a visa is sought. A 'deemed export' refers to the release of technology to a foreign national in the United States. Such a release is considered an export to the foreign national's country of citizenship (and, in some cases, residence or birth). As with physical exports or electronic transfers from the United States, a deemed export can require a licence from the US government, depending on the nature of the technology at issue and the foreign country (or countries) to which the employee has ties. Thus, the new form certification requires US employers to determine at a very early stage whether the prospective employment of a non-immigrant worker will trigger a deemed export licence requirement.
Such early identification of deemed export licence requirements is a best practice already employed by US entities that are well versed in US export controls. However, human resources personnel and hiring managers at companies without dedicated export control personnel may need assistance in implementing controls to address the new certification requirement. Further, it can be difficult to determine whether a deemed export licence is required for a position such as a software programmer, engineer or manufacturing manager when the projects on which the individual will work are not known at the outset. This difficulty is compounded by the fact that different deemed export rules apply depending on whether the technology at issue is regulated under the Export Administration Regulations (for civilian or dual-use items) or the International Traffic in Arms Regulations (for defence articles).
What penalties can a company face if it completes the new certification incorrectly?
Although the new certification does not alter existing deemed export rules, this certification potentially increases employers' liability for erroneous deemed export licensing determinations. If the US entity erroneously certifies that no export licence is required for an individual, it may be subject to criminal sanctions for false statements to the US government. Thus, the introduction of this simple certification potentially gives the US government additional tools to sanction companies that violate deemed export rules.
What should employers do to prepare for the forthcoming change?
Affected employers should review their export control compliance procedures now to ensure that their human resources or immigration law departments are in a position to begin submitting certifications on December 22 2010. For example, employers should consider whether their technology and technical data have been classified for export control purposes. Employers may also wish to create a list of positions that require access to controlled technology or technical data and ensure that their human resources or immigration law personnel are aware of this list. Employers that fail to integrate proactively deemed export controls into their human resources or immigration law function may no longer be able to complete the revised Form I-129 on an expedited basis, which is often a business necessity.
In other news, on November 9 2010 the Obama Administration announced the creation of an Export Enforcement Coordination Centre within the Department of Homeland Security,(1) uniting enforcement resources from seven executive departments and other federal agencies. The goals of the centre are to:
This enhanced coordination is intended to achieve more aggressive enforcement of US export controls, including the controls applicable to deemed exports.
For further information on this topic please contact Robert Torresen or Lisa Crosby at Sidley Austin LLP by telephone (+1 202 736 8000), fax (+1 202 736 8711) or email (email@example.com or firstname.lastname@example.org).
(1) White House Press Release, "Executive Order - Export Enforcement", at http://www.sidley.com/files/News/6485a3b8-c300-4a1d-a718-1508456c7624/Presentation/NewsAttachment/b880b755-e1f8-4a70-a27b-16a60881fac5/Executive%20Order%20-%20Export%20Enforcement.pdf.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.