If your company employs individuals requiring nonimmigrant work visas, a new and important requirement goes into place on February 20, 2011, in the form of the updated version of Form I-129, Petition for Nonimmigrant Worker.

Under this new requirement, those employees who typically sign nonimmigrant worker petitions, such as human resources managers, are now required to certify that their company has complied with the “deemed export rule.”

Specifically:

• The new Form I-129 requires an employer to certify that, with respect to any technology or technical data that it plans to “release” to an H-1B, L-1, or O-1 worker, it has both (1) reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”) and (2) determined whether an export license is required to release such technology or technical data.
• If an export license is required, the employer must further certify that it will prevent access to the controlled technology or technical data by the worker until the requisite license (or other authorization) is obtained.
• It is important to understand that a “release” or “export” of technology or technical data is deemed to occur when, for example, a nonimmigrant foreign person worker reads controlled blueprints, has access to a computer terminal containing controlled technology, or even when controlled technology is indirectly exchanged with the worker through a conversation – even if these activities occur wholly within the physical territory of the United States. This is known as a “deemed export” under the U.S. Commerce Department’s EAR. Although not specifically defined as such under the U.S. State Department’s ITAR, the concept applies to that control regime, as well.
• Penalties include civil fines of up to $500,000 per violation, criminal penalties of up to $1 million per violation and up to 20 years in prison, a denial of export privileges, and debarment from U.S. government contracts.

Because making the decision regarding whether or not an export license is required is a very complicated and highly regulatory determination, we advise that all HR managers obtain legal advice before signing a Part 6 certification.

If your company has any employees requiring nonimmigrant work visas, please contact the attorneys below to set up a meeting so that we can assist you in reviewing your company’s export compliance procedures to ensure that you are able to submit the required certifications by February 20, 2011.

*This Alert is for information purposes only and should not be construed as legal advice. This information is not intended to create, and receipt of it does not constitute a lawyer-client relationship. For more information or an explanation about the matters discussed in this Memorandum, please contact an attorney at Maynard, Cooper & Gale, P.C.