GREENBERG TRAURIG, LLP ATTORNEYS AT LAW ©2010. All rights reserved. The New Form I-129: Are You Ready to Certify Compliance with US Export Control Laws? Michael X. Marinelli GT Export Controls Practice Group Maggie Murphy Laura Foote Reiff GT Business Immigration & Compliance Practice Group

- 2 - Changes to the I-129  Form used for most nonimmigrant work visa petition filings (H-1B, H-3, L-1, O-1, P, etc.)  New form effective November 23, 2010 – Must be used for all cases filed after December 21  Several significant changes applicable to H-1B, L-1, O and P filings  New certification section requires that employers certify compliance with federal licensing requirements governing the “release” of “controlled technology or technical data” to certain foreign employees  New authorization upon signature opens company records up for verification, audit and “on-site compliance reviews”

- 3 - Form I-129, Page 5 – New Certification Section Certification currently limited to H-1B, H-1B1, L-1 and O-1A petitions filed on I-129 Requires employer to: 1) Identify technology/technical data to which employee will have access; 2) Evaluate whether or not a license is required; and 3) Certify compliance.

- 4 - New I-129, Page 6 – New Authorization Upon Signature Signing under penalty of perjury Revised to expand CIS authority to verify information Any supporting documentation is open for review/audit/verification Specifically authorizes audits and on-site compliance reviews

- 5 - Who Assumes the Responsibility for the Certification? HR? Compliance? Legal? Person signing the I-129 should have approval to sign only after a careful analysis of the position duties, technology and technical data to which the employee will have access have been evaluated by an experienced export control professional or attorney.

- 6 - Assessing Current Compliance  Requires the combined efforts of legal, human resources, engineering/product development and export compliance □ How is the technology classified for export purposes? □ Who is working with that technology? □ Who needs access to the technology? □ Who has access to the technology? □ Are any of the people that need or have access foreign nationals? From what countries? □ Is a license required for export to that country? □ Are there any exceptions?

- 7 - The Deemed Export Rule  The disclosure of technology, technical data and some software to a foreign national is deemed to be an export to the home country or countries of the foreign national  Applies to disclosures made in the United States  Applies to disclosures made to employees

- 8 - Technology and Technical Data  Technology and technical data are broadly defined  Information necessary for the development, production, or use of a product  Includes information related to maintenance, testing or repair of a product  Includes visual inspection of controlled items  Applies to information about the company’s products  Applies to information about the products the company uses internally

- 9 - Enforcement Environment and Trends  Higher penalties  Focus on criminal cases  Increased targeting of individuals  Increased use of undercover techniques  Increased involvement of Immigration and Customs Enforcement in export cases

Enforcement Priorities  Industries □ Nuclear, chemical and missile related goods and technologies □ Electronics and telecommunications □ Semiconductors and computers  Geographies □ China □ Iran □ Transshipment Points (UAE, Hong Kong)  Procurement Networks □ Including technology procurement

Penalty Increase under EAR  Under the International Emergency Economic Powers Enhancement Act (PL ) the penalties for export violations increased  Civil penalties now up to: □ $250,000 per violation, or □ twice the gain from the illegal transaction  Criminal penalties up to $1,000,000  Prison term up 20 years

Sirchie LLC Settlement  First maximum penalty case  $2.5 million civil penalty  $10.1 million criminal penalty  Case involved violation of a previous denial order against the CEO  New violations involved his participation in otherwise legal export transactions

J. Reece Roth  Professor Emeritus at University of Tennessee  Sentenced to 48 months for conspiracy to transmit export controlled technical data to a Chinese national  Foreign national was a research assistant  Controlled data was related to an Air Force contract

Dawn Hanna  Individual sentenced to six years in prison for exporting telecommunications and GPS equipment to Iraq  Also required to remit over $1.1 million dollars in profits  No penalty imposed on the employer-company, which was owned by her brother

Addressing Possible Violations  Taking employees off-line □ Employment terms □ Discrimination issues □ Operational issues  Obtaining licenses  Voluntary disclosure considerations

Action Points for Export Control Teams  Classify technology within the company  Establish or evaluate procedures for controlling release of technology to employees  Identify functions that require access to technology  Identify functions that have access to technology

Action Points for HR/Hiring Managers  Detail technology and technical data utilized per position  Audit current foreign nationals working in U.S. nonimmigrant visa status and identify visa classification for each employee  Prepare protocols to identify business activities and job duties, if applicable, for all employees or incoming “agents” to determine access to technology/technical data  Prepare recruitment protocols if company has controlled technology, to identify when further analysis is needed during the recruitment process  Regularly update information for review and audit by export controls team and/or export controls attorneys

What If A License is Required – Can You File the Visa Petition?  Obtain analysis of likelihood of licensure  Petition can be filed prior to licensure □ Check box 2 on I-129 □ Employee must be restricted from access to controlled technology □ Recordkeeping is key  Careful tracking of changes in positions, job duties is required  Consider a protocol for all incoming foreign nationals, not just those subject to current CIS certification