Beginning February 20, 2011, U.S. employers will have to certify their compliance with U.S. export licensing requirements when petitioning for H-1B, H1-B1, L-1, and O-1A visa classifications on behalf of employees.
The new I-129 form requires employers to review the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and to classify the type of technology or technical data that will be released or accessed by the foreign national in order to assess whether an export license is required before releasing this technology or data to the individual. Under both the EAR and the ITAR, release of such technology or data information to a foreign national, even by an employer, is deemed to be an export to that person’s country or countries of nationality.
While the licensing requirements may only affect a small percentage of petitioner (this is because many technologies will not be covered or exempted under the law), companies that hire foreign workers should familiarize themselves with these laws and discuss with immigration counsel or immigration attorney its impact on future visa petitions.
Petitioners will now need to certify that no export license is required or if any export is required, then the employer must certify that it will not release or otherwise provide access to controlled technology or technical data to the foreign national until it has received the required governmental authorization to do so.
EAR and ITAR Regulations can be accessed by following the links below. Feldman Feldman & Associates will soon publish an FAQ on the Form I-129 Export Control rules for employers.