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By ANDREW R. MCILVAINE, senior editor of Human Resource ExecutiveŽ, the sister publication of Risk & InsuranceŽ

A new requirement intended to help prevent technical information from being shared with inappropriate entities requires employers to be extra careful when processing visa requests.

The new USCIS rule requires employers to attest that they've determined whether or not they will need an export license from the Commerce Department in order to allow a foreign worker access to "controlled" technology and technical data.

As part of the process, they must have in place proper safeguards to ensure the worker won't have access to the technology until the company receives the license.

The new rule, contained within Part 6 of a revised version of USCIS Form I-129--which employers must file as part of sponsoring foreign workers under special work visas, including the H-1B, H-1B1, O-1A and L-1--goes into effect Feb. 20.

The law requiring export licenses for certain technologies is not new, but the revised form represents a new effort by the government to make companies that sponsor foreign workers aware of their obligations under the law.

The revision was implemented "due to reports from the Government Accountability Office that vulnerabilities existed in the export-licensing system that could allow transfers of technology to 'countries of concern,' " said Ostapowich.

Hector Chichoni, chair of the immigration practice at Duane Morris in Miami, said the revised form could prove to be a headache for some employers that lack sophisticated legal departments.

"I think the new requirement is necessary, but it's also going to add more delays and complications to a process that is already burdensome for employers," he said.

The new requirement was originally scheduled to go into effect at the end of last December, but it was delayed after an outcry from the business community, said Chichoni.

Most companies that apply for the work visas will not have to obtain export licenses, he said. However, the process of determining whether or not they will need to get the licenses is often time-consuming.

Employers that determine they do need an export license don't necessarily have to delay the foreign worker's entry into the workplace, nor will it affect whether the visa petitions are approved, said Jim King, co-chair of the business immigration group at Seyfarth Shaw in Atlanta.

"The foreign national can travel here and start working before the license is in hand, but you'll need to ensure they're not exposed to that technology," he said.

As part of the process, employers need to review the government's Export Administration Regulations and the International Traffic in Arms Regulations, which list the technology and data in question. A quick resource for companies to turn to, according to King, is the Commerce Control List, which is maintained by the Department of Commerce's Bureau of Industry and Security.

"The CCL will give you an overview of the items subject to export control," he said. "It will give you an idea of the categories of technology that are covered by these regulations and what you need to be looking at to determine whether the stuff you have is controlled or not."

Chichoni suggested that it would be helpful for his clients if the government implemented a "fast-track" option for companies sponsoring foreign workers to obtain an export license at the same time; it currently takes 40 to 60 days to obtain a license.

The government has no plans to do so at this time, Ostapowich said.

February 11, 2011

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