Immigration and Export Control Compliance

On February 20, 2011, U.S. employers will begin having to certify their compliance with deemed export rules when filing H-1B, L-1, or O-1 petitions.  Employers filing for these temporary work visa classifications should review their export compliance procedures now to prepare for this new requirement.

The new form I-129 petition, effective December 23, 2010, contains several significant changes.  The form includes specific questions about the employee’s work location and petitioning employer’s control, and it also contains an additional section, for which implementation has been delayed, on compliance with deemed export rules. 

The deemed export attestation requires employers to choose one of these two options:

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 it has determined that:

As background, EAR and ITAR prevent the export or release of controlled technology with sensitive military, law enforcement, national security, or related applications.  EAR controls commercial items on the Commerce Control list (EAR list) and ITAR controls defense-related items on the ITAR list. As a practical matter, most commercially available technology is not controlled under EAR or ITAR, but employers working with advanced scientific or manufacturing equipment are more likely to be subject to these licensing requirements.  A deemed export covers the release of controlled technology to a foreign national in the United States, since this is considered an export of technology to that person’s country of citizenship.     

To complete the new I-129 attestation, the employer must classify the technology or technical data that will be accessed by the foreign national employee to determine whether an export license will be required.  Employers should consider whether technology or technical data have been classified for export control purposes and then create a list of positions requiring require access to this technology.  Employers should be prepared to show why the technology was not subject to export controls, explain how access was restricted, or confirm that a license was obtained. 

The deemed export section of the I-129 does not change the employer’s existing responsibilities, but the certification could potentially increase its exposure to sanctions for violating deemed export rules.  Employers should be prepared to address this new certification by integrating their export control procedures into their human resources or immigration functions. 

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I-9 Compliance and Updated Employer Handbook

The Wall Street Journal reported January 20, 2011 on government plans to strengthen capacity for conducting audits of I-9 employee files.  To support regional enforcement actions, U.S. Immigration Customs and Enforcement (ICE) will establish the Employment Compliance Inspection Center to review I-9 files collected from larger companies targeted for audits.  In FY 2010, ICE audited more than 2,740 companies and levied $7 million in civil fines.  The agency plans to continue this policy of “silent raids” rather than focusing on the high profile workplace enforcement actions that were the hallmark of the previous administration.  ICE recently demonstrated the local impact of this policy after its audit of the 50 Chipotle restaurants in Minnesota led directly to the company’s decision to dismiss hundreds from its workforce of 1,200. 

All U.S. employers must verify the identity and employment authorization of each person they hire by completing and retaining an I-9 form for each employee regardless of citizenship status.  The United States Citizenship and Immigration Services (USCIS) issued a new version of its handbook with guidance to help employers comply with the I-9 process.  The January 5, 2011 version of The Handbook provides new sections on difficult situations, including interruptions in employment, extensions of status, H-1B portability, indentifying employment authorization for foreign nationals in Temporary Protected Status (TPS), electronic storage, and E-Verify for Federal contractors.   The Handbook clarifies that an employee in H-1B status who changes in employers can start working for the new employer when it files the new H-1B petition, rather than waiting several weeks for the receipt notice to arrive. 

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H-1B 2011 Quota Reached

USCIS announced January 27, 2011 that it had received enough cap-subject H-1B petitions to reach the annual limit of 65,000. The final receipt date was the day before the announcement, or on January 26, 2011. The agency will conduct a computer-generated lottery for selecting those petitions subject to the cap that were received January 26. The agency will reject all remaining cap-subject petitions not selected and return all filing fees. It should be noted that USCIS will continue accepting cap-exempt petitions, including extensions or petitions for H-1B workers to change employers. USCIS will begin accepting new H-1B petitions on April 1, 2011 with a petition validity start date of October 1, 2011.

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Eighth Circuit Addresses Exclusionary Rule in Deportation Hearings

On December 23, 2010, the U.S. Court of Appeals for the Eighth Circuit clarified in Puc-Ruiz v. Holder that an arrest without probable cause was not such an egregious Fourth Amendment violation to justify the suppression of evidence from the arrest in a civil deportation proceeding. The U.S. Supreme Court held in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) that the exclusionary rule does not generally apply in deportation hearings, while allowing for exceptions based on egregious violations of the Fourth Amendment. The recent Eighth Circuit decision was significant because it addressed, as a matter of first impression for the court, what constitutes an egregious violation. The court found no egregious conduct without allegations of police misconduct beyond lack of probable cause for the arrest. Specifically, there were no allegations in this case that police used unreasonable force or based the arrest on race or appearance. Moreover, the court found that this was not a case where police officers invaded private property and detained individuals without any basis whatsoever. They were acting on information regarding the ongoing violation of a municipal ordinance.

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