New DHS Visa Certification

Interestingly, the Department of Homeland Security (DHS) does NOT seem to have gotten the message.

Typically, companies wishing to hire foreign nationals to work in professional positions in the U.S. request temporary visas from DHS in three categories: H-1B applies to workers in “specialty occupations;” L-1 applies to executives, managers and workers with specialized knowledge transferring from a related company overseas; and O-1A for those with “extraordinary ability” in science, education, business or athletics.

In February, 2011, DHS revised its visa request form to include a certification made under penalty of perjury. DHS now requires companies to attest that they have reviewed all the lists of controlled products and technologies, and certify whether or not a license is required before controlled products, technology or information may be disclosed to the foreign national named in the visa application. Consequences of this certification are broader than they seem. Clearly, any inconsistency on the visa application, whether innocent misstatement or intentional misrepresentation, could result in personal and/or company liability.

But companies often are unaware of the fact that their products or technologies are controlled. In the past, ignorance might protect the company, provided it voluntarily admitted the error of its ways. However, if a company certifies that it has controlled products or technologies, even on a document unrelated to exporting products, such as a visa application, it cannot later claim ignorance when caught exporting controlled items without the requisite license. The new visa certification may even impact global management structures and mergers and acquisitions.

Companies that have certified they have controlled products may need to seek U.S. government authorization before sharing or discussing them with an employee of a foreign subsidiary/parent or with a potential acquirer. Nondisclosure agreements do not afford protection from liability if the export or disclosure violates U.S. export laws.

Clearly, while the new export control certification is designed to push companies to review and comply with U.S. export control laws, it certainly does not mesh with the NEI to simplify the export control system.

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