Part 6 of Form I-129 contains the new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.”  The new Certification requires the employer to certify that it has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”).  The employer certifies, with respect to any technology to which the employee will have access on the job, that a license from the Department of Commerce or Department of State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained).

What Are the EAR and ITAR Regulations?

The EAR regulations (found at 15 CFR Parts 770-774) and the ITAR regulations (found at 22 CFR Parts 120-130) prevent controlled technology with sensitive military, law enforcement, anti-terrorism, or similar applications from being exported or released to other countries.  An employer who releases controlled technology or technical data to a foreign national in the course of his or her employment, even if the employment is in the United States, is deemed to have “exported” that technology to the person’s country or countries of citizenship.  More detailed information on the topic of “deemed exports” is available from the Department of Commerce’s deemed export page.  The EAR and ITAR regulations require employers to obtain export control licenses before releasing controlled technology or technical data to foreign nationals in the United States. 

Which Employers Are Likely to Require Licenses?

Employers who are military contractors or subcontractors are most likely to be affected, but both universities and private employers will be affected by the changes to Form I-129.  In general, most types of commercially-available technology are not controlled under the EAR and ITAR regulations, or are exempted from the licensing requirement because they are commercially available.  However, employers dealing with certain advanced scientific and manufacturing equipment, as well as certain software and software systems, may be subject to licensing requirements for employees from certain countries, depending on whether the technology has military, law enforcement or counterterrorism applications in addition to its normal, civilian uses.

What Additional Responsibilities Are Required Now of All Petitioning Employers?

With the new I-129, all employers sponsoring H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants must now determine whether an export control license is needed for the nonimmigrant employee before the petition can be prepared.  Employers may be able to make such a determination for all employees of a particular type; for example, if an employer only hires physical and occupational therapists on H-1B visas, the employer may be able to consult an export control lawyer, or obtain an advisory opinion from the Department of Commerce, that such employment does not involve controlled technologies.  For other employees, a case-by-case assessment with the assistance of an export control lawyer may be necessary. 

Personnel responsible for H-1B petitions also must determine the appropriate person within the organization to contact regarding the organization’s export control compliance, who can help identify whether the technology and technical data that will be used by or available to the alien beneficiary in the course of his or her employment is controlled under the EAR and ITAR regulations .  Your Klasko Law attorney can work with your in-house export control compliance specialist to help develop a protocol between Human Resources, General Counsel and others involved in the immigration process to document that the organization has reviewed the issue and determined that no license is necessary.  If your organization does not have that capability in-house, we can help your organization select outside counsel to make an initial determination regarding export compliance, and help establish a clearance protocol with them if necessary.

The protocol developed will enable employer to document how and when the EAR and ITAR determination was made, and to keep that information in the H-1B employee’s file, should it ever be requested.  Such documentation will then be available in the case of an audit, a site visit or a request for evidence pertaining to the employer’s export control compliance. 

The deemed export control regulations are complex, but your Klasko Law attorney can help your organization get ready for the new attestations on Form I-129.    If your organization sponsors H-1B, H-1B1 Chile/Singapore, L-1, and O-1A nonimmigrants, contact us to determine how the deemed export attestation will affect your organization’s immigration compliance.

If an employer filed an H-1B or L-1 petition on behalf of an employee that was postmarked on or after August 14, 2010, U.S. Citizenship and Immigration Services (“USCIS”) has started to issue “Requests for Evidence” (or RFEs) to determine if the employer is subject to P.L. 111-230. The RFE requests employers to submit an attestation or other documentation to establish whether or not the petition is subject to the new fee.

If the employer is subject to P.L. 111-230, the employer should return the RFE along with a statement explaining why the employer is subject to the fee and include a check for the relevant amount (either $2,000 or $2,250 depending on the type of nonimmigrant petition). If the employer is not subject to P.L. 111-230, the employer may sign an attestation which states why the employer is not subject to the law. The attestation should be placed on the employer’s letterhead, be signed by the employer, and should state:

“[Name of employer] has [number] employees in the United States, of whom fewer than [insert number] are H-1B or L nonimmigrants. As such, [name of employer] is not subject to the additional fees required under PL 111-230.”

Employers should be careful to include only the number of employees in the United States and not the world-wide number of employees in the calculation. This number may differ from the “number of employees” question asked on Form I-129, which may include a world-wide employee figure.

For H-1B and L-1 petitions filed on or after August 14, 2010, Klasko recommends that employers create an addendum to the Form I-129 Data Collection Supplement, which explains why the employer is not subject to P.L. 111-230. USCIS also has indicated that employers should note on the H-1B cover letter whether or not the petition is subject to P.L. 111-230.  For more information, contact your Klasko Law attorney.

 
Klasko Law will continue to monitor the situation and will provide updates regarding how many H-1B spots continue to remain.

 
Since the DOL implemented the iCERT system, there have been numerous delays in obtaining certification of LCAs.  As we previously blogged, while it was known that iCERT would eliminate same day LCA approvals, the DOL originally anticipated that it could take up to seven business days to certify the LCA. However, since its implementation the iCERT system has experienced a number of technical glitches that have resulted in delays in obtaining certified LCAs beyond the seven day period.  With April 1, 2010 fast approaching, employers should contact their Klasko Law attorney immediately if they wish to sponsor an employee for an H-1B visa in the 2011 fiscal year.

If an H-1B employer received TARP funding, the employer must make attestations on its Labor Condition Application (LCA) filed with the Department of Labor (DOL), including attesting to good faith recruitment efforts and having hired any qualified US workers, prior to filing an H-1B petition. Any company that received TARP funding and seeks to hire H-1B workers is considered to be an “H-1B dependent employer” under EAWA.

H-1B dependent employers, including all TARP recipients with outstanding obligations, make these additional attestations on an LCA:

• The employer has taken or will take good faith steps meeting industry-wide standards to recruit U.S. workers.
• The employer will offer compensation that is at least as great as those offered to the H-1B worker.
• The employer has offered or will offer the job to any U.S. worker who applied and is equally or better qualified for the job.
• The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the date of filing the I-129 petition.
• The employer will not place an H-1B worker at another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker. This is called the “secondary displacement inquiry.”

What if your company received TARP Funding?

H-1B employers first must identify if they have received TARP funding, as USCIS contacts the Department of the Treasury, the Federal Reserve and other relevant agencies to identify employers who have received TARP funding. Employers must accurately complete Form I-129W, H-1B Data Collection and Filing Fee Exemption Supplement, which asks the employer if it is H-1B dependent. You should alert your Klasko Law attorney if your company received TARP funding, as additional recruitment steps may be necessary before you file an H-1B petition for a new H-1B employee. This is particularly important in light of the approaching April 1, 2010 deadline for filing new H-1B petitions with an October 1, 2010 start date.

If your company has received TARP funding, EAWA applies to any H-1B petition filed on or after February 17, 2009 for employment by a “new employer.” Any TARP recipient seeking to hire a new H-1B employee with no prior employment relationship is subject to EAWA. This includes “concurrent employment,” where an employer hires a new employee who continues work with another employer in H-1B status. EAWA also applies even if you filed the H-1B petition prior to February 17, 2009, but the new H-1B employee commences employment after February 17, 2009.

EAWA does not apply to H-1B extension petitions for a current employee with the same employer. It also does not apply to an H-1B petition to change the status of a current U.S. work-authorized employee to H-1B status with the same employer. For example, if the employer has an employee in L-1 status, and the employer wishes to change the employee’s status to H-1B, EAWA would not apply.

EAWA remains in effect until February 17, 2011.

What if We Repaid Our Funding?

USCIS recently confirmed that if you received TARP funding, but have repaid your obligations, an employer will no longer be considered H-1B Dependent. Employers who have repaid their obligations should answer “no” to Question A.1.d. on the H-1B Data Collection and Filing Fee Exemption Supplement. USCIS also encourages employers to submit evidence that their TARP obligations have been repaid to avoid processing delays.