H-1B AND L EMPLOYERS ARE REQUIRED TO COMPLY WITH THE EXPORT CONTROL REGULATIONS
As of February 20, 2011, the petitioner for an H-1B or L employee must certify the following:
With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:
␣ A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
␣ A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.
The petitioner must check one of the above boxes on the H-1B form. The U.S. Department of Commerce, Bureau of Industry and Security describes a deemed export as the following:
An export or reexport is “deemed” to take place when technology or source code is released to a foreign national within the United States or abroad. This release is considered to be an export or reexport to that person’s home country. Note that this does not apply to U.S. citizens or certain other individuals such as those who hold green cards. You can release source code or technology to foreign nationals when you make the source code or technology available for visual inspection such as reading technical specifications, plans, or blueprints; when you have a verbal exchange; or when you provide guidance to a foreign national through practice or application.
Certain items are not subject to the EAR, including the following: literary publications such as printed books and newspapers; publicly available technology and software such as information that is published or will be published; information arising during or as the result of fundamental research; and educational information provided in a catalog course and certain patent applications.
In addition, foreign-made items with less the de minimis percentage (less than 10%) of controlled U.S. content is not subject to the EAR.
An organization’s proprietary technology (i.e. trade secrets) falls within the scope of the EAR and may require authorization from BIS before being released to a foreign national.
If you are an H-1B employer, you need an export management and compliance program. Even if it turns out that you do not need an export license for your H-1B worker, you still need to keep records and show that you have complied with the export control regulations. In order to comply, your company needs to do the following:
- Create an export management and compliance manual;
- Register on-line with the SNAP-R at bis.doc.gov;
- For a particular software or other technology project, apply through SNAP-R for an Export Control Classification Number (ECCN). The Bureau of Industry and Security (BIS) will respond either stating that the software project is EAR-99 or with the ECCN classification;
- Even if the technology is classified as EAR-99, you may still need a license depending upon the destination, end user and end use;
- If the BIS responds with an ECCN classification, then you must check the country lists to see if a license is needed, and if so whether an exception is available;
- If a license is needed, then all foreign workers coming to the U.S. to work on the project will need an individual license;
- Even if a license is not required, the company must keep records for five years to show compliance with the regulations.
H-1B VISAS FOR PROFESSIONALS
H-1B NEWS JANUARY 2010
On December 21, 2009, USCIS reached the regular H-1B cap for Fiscal Year 2010. Employers wishing to file cap-subject H-1B petitions will now have to wait until April 1, 2010, to file H-1B petitions for the 2011 Fiscal Year, which begins on October 1, 2010. As in the last several years, because there are only 65,000 H-1B visa numbers plus the 20,000 visa numbers for US masters degree holders. You should start preparing in January for any H-1Bs which should be filed at the end of March 2009 so that they may be received on April 1, 2009, the earliest filing date. Because of the recession, we do not know if applicants have a greater likelihood of receiving a visa number this year. USCIS has implemented a new Labor Condition Application system, iCert, which often takes seven days or more to certify LCAs. An additional problem is that the iCert system checks its database for the FEIN number of the petitioning employer. Because the iCert system lacks many FEIN numbers, Dept of Labor is denying many LCAs because it is unable to verify the FEIN number. This causes an additional delay, because the employer has to submit evidence of its incorporation and FEIN number, and then once this is verified by DOL, has to file another LCA. Thus, if you are planning to file an H-1B petition on April 1st, you should being work early, and file the LCA at least a few weeks before the deadline. A person with a bachelor’s degree or a combination of university-level education and work experience that is equivalent to a bachelor’s degree, may be able to obtain a professional worker’s visa, called an H-1B visa.
If you have been educated outside the United States, your academic credentials must be evaluated to see if they are equal to a four-year University-level education in the United States. If you attend a college or university in your home country, you must make sure that it is an accredited institution.
Aside from qualifying as a professional, the foreign worker must also find an employer to sponsor him or her for a professional-level job. A professional-level job is one which requires a bachelor’s degree or its equivalent. For example, not all computer programmer positions are considered to be professional-level jobs. Also, if a job requires a license, as many jobs in the medical profession do, then one must obtain that license before qualifying for the job.
Foreign medical doctors may obtain H-1B status to work as researchers, teachers, or to perform patient care. Foreign medical graduates seeking internships and residencies may obtain H-1B status as long as they have a license both in the foreign country and in the state in the U.S. where they intend to practice, and have taken the U.S. Medical Licensing Examination (USMLE).
Registered nurses are not generally considered to be eligible for H-1B status, unless the position requires at least a bachelor’s degree.
Fashion models of “distinguished merit and ability” may also obtain H-1B status. Fashion models must show that they are well known either nationally or internationally to obtain an H-1B visa.
Foreign professionals may obtain an H-1B visa for either a full-time job or a part-time job. One may also obtain an H-1B visa for two part-time jobs as long as one gets approval from the USCIS. Anytime an H-1B worker changes jobs, he or she must notify USCIS and obtain their approval to transfer H-1B status to the new employer. Now, with the portability provision, a worker who is already in H-1B status with one employer may begin working for a new employer upon the filing of a new H-1B petition. There is a legal limit on the time one can spend in H-1B status of six years. The six-year limit may be extended if the foreign worker has a pending Form I-140, and his or her labor certification or I-140 has been pending for more than 365 days. Extension of stay beyond the six-year limit is also possible for foreign nationals who cannot file for adjustment because their priority date is not current, due to the per-country limits.
U.S. Employers may petition for foreign workers outside the U.S. by obtaining approval of an H-1B petition from USCIS, and by then contacting the U.S. consulate in the foreign country for processing of the H-1B visa.
Professionals who are citizens of Canada may obtain a TN visa under the North American Free Trade Agreement (NAFTA). NAFTA has a list of professions for which a person may qualify for a TN visa. For example, accountants, engineers, registered nurses, architects, lawyers, university-level teachers and research assistants, hotel managers, librarians, systems analysts, and management consultants all qualify for TN visas.