U.S. IMMIGRATION, NATIONAL SECURITY AND EXPORT CONTROL: IT HAS TRULY BECOME A SMALLER WORLD.
As the global transfer of people, products and technology increases, organizations of all sizes are likely to see an uptick in concerns about import and export control regulations. Of course, hand-in-hand with these concerns comes increased focus on the need for greater customs controls and concerns for National Security. Since the transformation of the Legacy Immigration and Naturalization Service (“INS”) in 2001 into the U.S.
Department of Homeland Security (“DHS”), greater focus and emphasis has been, and continues to be, placed on “immigration” and “customs” compliance and enforcement.
One reason for this greater focus has been the ability of the DHS to receive significant funding from the Federal government to enable this massive administrative agency to invest in and develop new technological infrastructure. Additionally, DHS has been able to slowly move away from a previously paralyzing and schizophrenic administrative philosophy to a more focused enforcement-oriented “mission”. This new enforcement “face of DHS” continues to manifest itself in: (1) investigations of employers about unauthorized employees (I-9 audits); and (2) investigations of employer sites regarding H-1B and religious worker visas and by the Fraud and Detection and National Security Division of the U.S. Citizenship and Immigration Services (“USCIS”); and (3) increased scrutiny of persons and products entering the borders of our Nation by U.S. Customs and Border Protection (“CBP”).
The enforcement efforts of various administrative agencies (including, but not limited to the DHS) can result in significant civil and/or criminal penalties for organizations that are not mindful of immigration, import and export control regulations. Organizations that are involved in international trade in persons, products and/or technologies should properly explore the parameters of the U.S. Federal regulations impinging upon their business practices. One burgeoning area that may inadvertently ensnare the unwary organization involved in the international trade arena are the “deemed export” regulations.
What is a “deemed export” you ask? A “deemed export” is a term of art that refers to the release of technology to a foreign national in the United States. Such a release is considered an export to the foreign national’s country of citizenship (and, in some cases, residence or birth). The most common example is releasing blueprints, schematics, source code, or other technical data to a foreign national employee whether through conversations, e-mails, access to a database, or by some other means. As with physical exports or electronic transfers, a deemed export may require a license from the U.S. Government. Failures to comply with the regulations can be significant and range from $250,000.00 in civil cases up to $1,000,000 and 20 years of imprisonment for criminal violations.
Effective on February 20th, 2011, the USCIS required U.S. employers filing
I-129 petitions to sign a revised I-129 form that certifies compliance with deemed export rules. This certification is applicable H-1B, H-1B1,
L-1 and O-1 petitions. Although the new question in Part 6 of the form does not alter existing deemed export rules, this certification potentially increases employers’ liability for erroneous deemed export licensing determinations.
As a result of this new change to the I-129 Form, organizations are now required, at a very early stage, to determine whether the prospective employment of a nonimmigrant worker will trigger a deemed export license requirement. Some organizations handle export control issues in-house through their legal, export or shipping departments. However, it continues to be likely that some organizations, without dedicated export control personnel, may need assistance to identify and implement controls to address the new certification requirements.
The deemed export control regulations are only one example of the way that the regulations in the immigration and international trade worlds converge. As the world continues to shrink and as trade in persons, products and technologies increases, our Nation will increase import and export regulations to ensure National Security and our Nation’s commercial global dominance. Addressing the challenges of the myriad of regulations takes time and resources. However, organizations that proactively address burgeoning issues in the import/export arena will be able to avert delays in the hiring of foreign national personnel and the importation of goods and services.
David H. Nachman, Esq. is the Managing Attorney of NPZ Law Group, a Business Immigration Law Office located in Ridgewood, New Jersey with Offices in New York City, Montreal, and Toronto. Visit the VISASERVE Team on the web at www.visaserve.com .