U.S. employer’s who hire foreign professionals, managers and executives have a new headache to worry about!
The U.S. Citizenship and Immigration Service (USCIS) recently changed the I 129 “Petition for Nonimmigrant Worker” form, which is used to request authorization to temporarily employ foreign nationals in the United States. The change also affects applications for “aliens of extraordinary ability” having national or international acclaim in the sciences, arts, education, business or athletics – or in motions pictures or television.
Due to concerns about potential deemed export* of sensitive or restricted technologies and materials, employers of foreign nationals in H-1B, L-1 or O-1 visa status now must sign a statement, attesting:
1) that they have reviewed the U.S. Export Administration Regulations (EAR) and the U.S. International Traffic in Arms Regulations (ITAR);
2) that they have determined whether or not a license is required to release any controlled technology or technical data to the foreign employee who will be visiting the U.S.; and
3) that if such a license is required, the foreign employee will not be given access to any controlled technology or technical data, until the appropriate export license has been obtained.
The wording of the new attestation requirement may create significant burdens for many employers. Even if certain that their companies do not handle any materials that require export licensure, the form still requires a declaration, under penalty of perjury, that the employer has reviewed the EAR and ITAR, and determined that no license is required.
You can find these regulations on-line at:
EAR – http://www.access.gpo.gov/bis/ear/ear_data.html#ccl
ITAR – http://www.pmddtc.state.gov/regulations_laws/itar.html
The export classification system and licensing determinations are complicated. If you have any difficulty determining whether or not any of these regulations apply to your situation, consultation with a U.S. export control law expert is recommended.
*Certain materials, technologies and technical data cannot be exported from the United States without an export license. A “deemed export” occurs if someone from another country is given access to such items while in the U.S. Even though no tangible goods leave U.S. territory, the mere exposure to them by a foreign national is deemed to be an “export” of the technology, and requires licensure.
Contact our Mesa immigration lawyers today!
Gunderson, Denton & Peterson, P.C.
By Brent Gunderson
1930 N. Arboleda, Suite 201
Mesa, Arizona 85213