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Berin S. RomagnoloPosternak Blankstein & Lund LLP

April 27, 2011

Deemed Exports:The New Non-Immigrant

Visa Requirement

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The Required Certification

• On November 28, 2010, the USCIS issued a new I-129 form, the form used to apply for certain temporary work visas.

• First time employers required to examine export control licensure requirements as they pertain to that foreign national and swear to such examination and compliance.

• USCIS soon delayed the certification requirement until February 20, 2011, to allow time for employers to develop internal compliance practices.

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The Required Certification

• Same old compliance requirements – but new to the work visa process, and a new written, sworn statement to the US government.

• New basis to hold employers liable for intentional or knowing misrepresentations, fraud, perjury, etc.• USCIS unlikely to follow-up to ensure that licenses are secured

prior to adjudicating the I-129.

• Certification only pertains to technology being released at the time of submitting the I-129 form, and based on information known or available at that time. • Regular, internal export license and compliance procedures

govern after submitting the form.• “Material” changes in employment may require an amended

filing, with a new certification.

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The Required Certification

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Targeted Technologies

• Industries and technologies targeted:• Pharmaceuticals• Nanotechnology• Quantum Computing• Advanced Materials• Communications and Encryption Technology• Weapons Systems yet unclassified• Biotechnology

(From the Bureau of Industry & Security)

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Top 10 Industries Requiring Licenses in 2010

• Materials Processing (motion simulators, chemical mfg. equipment, detection devices, etc.)

• Materials, Chemicals, Microorganisms, & Toxins

• Nuclear Materials, Equipment, Misc Items

• Electronics

• Telecommunications & Information Security

• Propulsion

• Sensors & Lasers

• Navigation & Avionics

• Computer & Related Software & Technology

• Marine

(From the Bureau of Industry & Security)

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Affected Foreign Nationals

Employers seeking the following temporary work visas for employees:

• H-1B • H-1B1 Chile & Singapore• L-1• O-1A

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H-1B Status

Generally, this is a work visa for “professionals”, which means a job requiring at least a bachelor’s degree or its equivalent. The foreign national must have the relevant degree.

Generally, it only grants authorization to work for the petitioning employer, for the stated job at the stated location.

Duration: 3 years initially and 6 years total. — Can extend beyond the 6th year if an employer files the first step in

the greencard process (the PERM application) at least 365 days before the expiration of the 6th year.

— So certify deemed export compliance with each extension, change of employer application, etc.

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H-1B1 Chile & Singapore

Essentially, a temporary H-1B professionally worker from Chile or Singapore.

Initial H-1B1 from a Consulate without an I-129 (so no deemed export certification). But changes in status, H-1B1 extensions, and changes in employers require filing I-129, with deemed export certification.

Granted in one-year increments, with no 6-year maximum stay. So, re-certify deemed export compliance every year.

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L-1 A/B Intra-Company Transferee

Generally, this is a work visa to transfer managers, executives, and those with “specialized knowledge” from a company abroad to their affiliated company in the U.S.

The foreign national must have been employed outside of the U.S. for a parent, branch, subsidiary or affiliate of the U.S. company for at least 1 year out of the last 3 years in a managerial, executive, or specialized knowledge role.

The foreign nationals must be coming to the U.S. to assume a managerial, executive or specialized knowledge role.

L-1A is for managers and executives, and L-1B is for specialized knowledge. A manager may manage people and/or a function.

Initial Duration: 3 Years. Maximum duration: L-1B: 5 years; L-1A: 7 years.

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O-1A Status

Generally, this is a work visa for aliens of extraordinary ability in the sciences, arts, education, business, or athletics, with sustained national or international acclaim.

Very high standard. S/he must have either received a major nationally, recognized award (such as the Nobel Prize), or at least 3 of 9 specified types of alternative evidence, including nationally or internationally recognized awards, authorship of scholarly articles in professional journals; membership in associations that require outstanding achievements of their members (as judged by recognized national or international experts in the discipline or fields); and original scientific, scholarly, or business-related contributions of major significance in the field.

Can be initially approved up to 3 years, and can be extended “indefinitely.” Need to re-certify deemed export compliance with each application

for extension, change of employer, etc.

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Due Diligence Required

Employers should designate someone to gather the information necessary to determine whether an export license is required Usually someone in Human Resources, Legal, Immigration, or Export

Control departments

Determine who has the information needed for the determination Direct Managers & Supervisors Managers at Client/third party offices

Develop template checklist or questionnaire to gather information. Keep the competed checklist as proof of due diligence.

If the person gathering the export control data is different than the person signing the I-129, may need internal documentation to show that the export control person completed his/her due diligence and communicated the necessary underlying information and determination to the I-129 signer.

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Work at Client/Third Party Sites

Where employees are working at client/third party sites, client (not petitioning employer) may be giving the assignments to the employee and knows what technology s/he has access to on a regular basis Client is required to determine if an export license is required for the

worker (even if it is a third party’s worker), and obtain licenses when required.

But, employer completing the I-129 still has obligation to determine if a license is required so that they can accurately certify so on the I-129.

Where client is controlling assignments and work environment, be careful that the client is not deemed the employer, in which case it should be the I-129 petitioner.

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Work at Client/Third Party Sites

Employer may want/need to obtain a separate, written certification from the client/third party stating that: they have investigated the relevant facts, they have determined whether an export license is required, they have communicated their determination and the underlying

facts to support it, they will continue to monitor the technology to which the employee

has access to ensure continued export compliance, they will obtain a license whenever a license is required, and they will inform the employer in writing if/when a license is required.

Employer may want/need an indemnification agreement for any liability arising out of violations related to export control compliance concerning named foreign nationals placed with them.

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Additional Considerations

Can, and should, make employment contingent upon obtaining required licenses, or shield new employee from restricted technology until license is secured (and document that she has been so shielded).

Inform hiring managers of this new level of written certification and investigation required. It may impact their recruiting process and who they want to hire.

The hiring process may be elongated as a result of the new due diligence and certification requirements. Inform hiring and other managers of this to manage their expectations.

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CONTACT INFORMATIONwww.pbl.com

Berin Sultan Romagnolo, Esq.Direct Dial: (617) 973-6105Facsimile: (617) 722-4929Email: bromagnolo@pbl.comMailing Address:

Posternak Blankstein & Lund LLPThe Prudential Tower800 Boylston Street, 33rd FloorBoston, MA 02199

On the web @ http://www.pbl.com