Don't forget to check if you need a government license for non-U.S. citizen employees who may be handling sensitive technology at your firm—or there could be serious consequences.  

New rules for employers filling out Form I-129 (Petition for a Non-immigrant Worker) for foreign workers went into effect on February 20. According to Part 6 of the revised form, published in November by the United States Citizenship and Immigration Service (USCIS), employers need to determine whether they need to get an export license before the worker can begin. The revised Form I-129 now requires employers to “indicate whether or not a license is required,” according to instructions for the form.

“The certification requirement is intended to ensure that certain non-immigrant visa petitioners are aware of, and will abide by, those existing requirements,” says Bill Wright, spokesman for U.S. Citizenship and Immigration Services.

This new requirement is part of what the Commerce Department's Commerce Department's Bureau of Industry of Security (BIS) calls the “deemed export” rule, since releasing controlled technology, software, or technical data to foreign nationals within the United States is considered an export to the person's home country.

Employers need to sift through BIS's complex Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) in order to judge whether a license is required. BIS's list of controlled technologies (Commerce Control List or CCL) is divided into ten categories, which include electronics, computers, and telecommunications and information security. “It is important to note that only certain types of technology or technical data are controlled for export or release to foreign persons,” Write says.

An employer who fails to obtain an export license, even if the firm is unaware that one is needed, can incur serious fines and even imprisonment, according to BIS's 2010 annual report. Last year alone, BIS's Office of Export Enforcement (OEE) contacted over 437 individuals and companies that hadn't previously submitted applications for the licenses about deemed export compliance—and it also initiated 26 cases based on allegations of deemed export licensing violations, the report said.

Compliance with these enhanced federal export control procedures might require additional training, new record keeping requirements, amended language in offer letters, and other internal controls, said partner Neal Beaton and senior counsel Tara Vance, from the law firm Holland & Knight LLP, in a February 25 legal bulletin.

Topics