USCIS Now Requiring H-1B, L-1, and O-1 Employers to Review Export Control Law

As if complying with the complexities of U.S. immigration law was not enough, employers must now review export control laws before submitting petitions for H-1B (professional worker), L-1 (intracompany transferee), or O-1 (extraordinary ability) visa petitions. The latest Form I-129, in effect since February 20, 2011, requires employers to complete the following question in Part 6:

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:

  1. 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

  2. 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 to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The idea is that when technology is disclosed to a foreign national, it is deemed to be exported to the home country of the foreign national. Some technologies require an export license to be exported to certain countries.

Question 6 actually requires an employer to review the EAR and the ITAR, and conclude whether or not a license is required. Employers whose business involves sophisticated technologies have probably already addressed this issue, and have probably already obtained the necessary licensure. However, this also requires employers that don't use sophisticated technologies to also review the law. In other words, it's not enough for the employer to say "I know this does not apply to us because we are kindergarten teachers/multi-media artists/professional hockey players/etc.", and just check the first box. By checking a box, an employer is stating that they have actually reviewed the EAR and the ITAR.

As an immigration lawyer, I regularly advise employers on H-1B, L-1, and O-1 petitions. With this new requirement, I quickly looked into the EAR and the ITAR, and found it rather complex on the surface. I attended a local seminar designed for immigration lawyers, thinking I would come away with an understanding of this area of law so that I could advise clients on this question. Instead I came away with the realization that this is an incredibly complex area of law that requires a detailed step-by-step analysis. Employers embarking on an H-1B, L-1, or O-1 petition should plan on first obtaining an advisory opinion on this Export Control issue, and possibly the necessary license. It's just one more additional requirement, and additional expense for employers of professional foreign nationals.

Work Visas / by Michelle Gee