Export Compliance and the HR Manager—Another “Hat” for Human Resources Personnel

As the year is winding down, I thought we should discuss a new compliance issue that has emerged over the past year that’s important for you and your human resources (HR) manager. I am talking about the U.S. Citizenship and Immigration Services (USCIS) I-129 Petition for a Nonimmigrant Worker form. Find the USCIS I-129 form here. Employers petitioning for an alien to temporarily come to the U.S. in order to work or to receive training must complete this form. Usually, a company’s HR department will complete the form. In February 2011, a new section was added to the form (“Part 6”). It is mandatory for those employers applying for H-1B, H-1B1 Chili/Singapore, L-1, and O-1A visas. And, here is the scary compliance twist: the HR manager has to certify that he/she has read and complied with the deemed export rules of the Departments of Commerce and State.

Your first question might be, what is a deemed export? Don’t worry – you’re not alone. That’s the same question a lot of immigration attorneys had when Part 6 was first announced. This small addition to what was solely an immigration form created a whirlwind of questions. What are companies signing? What are the penalties if they are mistaken? Who is liable? What if the employees work for a third party? What if I have foreign workers but I didn’t hire them?

What is a deemed export? To explain this we’re going to have to get a little technical. Both the Department of Commerce and the Department of State’s export regulations include lists of technology and technical data that are controlled and cannot be exported without a license. Likewise, even if the items are not physically exported out of the country, sharing controlled items with foreigners located in the U.S. is considered a “deemed export.” The rule is, if a license is required to export the item to a foreign country then a license is also required to release the item to a national of that country – even when they are in the U.S. Releases can happen in many ways – some that you would probably never even think about, like telephone conversations; leaving blueprints, specs, or drawings out in the open; giving tours and trainings; and sending emails and faxes.

Ok, so how does all this relate back to Part 6 of the I-129 form? Well, first of all, Part 6 requires HR managers to sign that they have read the export regulations. Second, HR managers must indicate whether or not the foreign person will have access to items requiring a license and, if so, acknowledge that the manager will restrict the foreigner’s access until a license is received. Obviously, this requires HR managers to know what technology and data are controlled, which projects involve the technology/data, and which foreign workers might have access to such controlled items. This can require a lot of communication and a really well designed compliance program to ensure that all bases are covered.

TAKE AWAY: Amend your compliance program to include I-129 compliance. As usual, I say nothing beats a checklist or two to protect the company and yourself. Document your “check the box” decision and classify your technology. If you do that once and you don’t have new products – you will be set.