After several recent cases where foreign nationals working in the United States were involved in theft of trade secrets, corporate espionage and export controls claims, the Department of Homeland Security has acted to exert more control over certain foreign nationals. Employers hiring H-1B, H-1B1, L-1, and O-1A foreign national workers must now certify whether an export control license is required for the employee.

Employers with established export controls compliance programs should review existing procedures to ensure proper compliance with the immigration-specific requirement and take steps to ensure export controls compliance.

Open PDF: Export controls compliance certification: Required as of February 20, 2011, for employment of many foreign nationals

Beginning February 20, 2011, the U.S. Citizenship and Immigration Service (USCIS) will require all employers seeking employment of H-1B, H-1B1, L-1, and O-1A foreign national workers to certify whether an export control license is required for the employee. The employer must determine if the  Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) are applicable to the employee and the job.

The required certification now appears on Part 6 of USCIS Form I-129, with two parts:

1. The employer must certify that it has reviewed the list of controlled technologies and technical data from the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).
2. With respect to technology or technical data that the employer intends to release to the foreign worker, the employer must check one of two boxes, stating either that an export license is not required, or that a license is required and will be obtained before the employer releases the controlled technology to the foreign worker.

In practice, few employers will be required to obtain a license on behalf of a foreign employee.  However, because of the substantial penalties and sanctions, it is important that employers understand the export controls requirement and how to determine if it applies to their foreign employees prior to making the attestation. When evaluating the export control license requirement, employers should be familiar with what is considered an “export”:

• The transfer of goods, technology, or software to a foreign location or, under certain circumstances, a foreign person in the U.S. or abroad, for example:

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