New Form I-129 Certification Regarding Export Licenses Poses Difficult Issues for Employers
Late last year, the United States Bureau of Citizenship and Immigration Services released a revised Form I-129 that imposes a significant new attestation requirement on employers petitioning for a visa on behalf of a prospective employee. Under the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) administered by the Departments of Commerce and State, respectively (collectively the "Regulations"), employers must obtain an export license to disclose certain controlled technology or technical data to employees who are citizens of or were born in certain foreign countries, because such a release is considered an export to the employees' home countries.
The new attestation requirement mandates that employers certify that either: (1) no export license is required to disclose controlled technology to the prospective employee; or (2) an export license is required to disclose controlled technology to the prospective employee, and the employer will ensure that no such release occurs until and unless the employer has received an export license to release the controlled technology.
In an article in the last issue of Government Contracts Issue Update, John R. Shane and Julie A. Dunne described the genesis of the new attestation requirement, its implementation, and possible future trends in export control compliance. See "Mandatory Certification for Export Control Compliance Prompted by GAO Audit Recommendations." This article focuses on the unique issues the new attestation requirement poses regarding federal employment laws.
While the licensing requirement is not new, the introduction of the attestation requirement presents employers with two conflicting challenges. Employers must learn the citizenship and birthplace of their employees to determine whether an export license is required. Yet federal employment laws generally prohibit collecting any such information at the pre-offer stage, and circumscribe such inquiries even after an employer extends an offer. A false step in collecting this information can lead to a claim of unlawful discrimination.
Separately, the EAR and ITAR are technology- and country-specific. This means that the Regulations apply only to certain specific technology, and only to citizens of or people who were born in certain specified countries. (For instance, while the Regulations may classify a widget as a controlled technology, they may allow disclosure of the widget to a citizen of Country X without a license, yet require a license for disclosure to a citizen of Country Y or to a person born in Country Z.) But as a practical matter, an employer may not know, when filling out the Form I-129, exactly what controlled technology a prospective employee will be exposed to at all stages of his or her employment, making the new attestation requirement even more treacherous.
While there are no easy answers to this conundrum, employers can take several critical steps to ensure compliance with their immigration and export control obligations, while avoiding potential employment discrimination claims.
Two Questions an Employer Must Answer to Fill Out the New Certification: Will Employment Involve Access to Controlled Technology, and What Is the Prospective Employee's Citizenship and Place of Birth?
At first glance, the new attestation requirement appears straightforward:
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 by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.
To answer the new attestation requirement an employer must first determine what technology will be disclosed or accessible to the prospective employee. While this is often known at the time the employee is applying for a particular position, an employer must also consider whether an employee who is not hired for a specific project requiring access to controlled technology may nonetheless be able to access controlled information (e.g., through the company's computer network or via access to facilities in which such information is stored), and whether that same employee may subsequently be transferred to another project that would require an export license.
Second, an employer must know the citizenship and place of birth of the prospective employee. After all, even if the prospective employee will be exposed to a particular controlled technology, the prospective employee may be a citizen of a country or have been born in a nation not requiring an export license. But the simplest solution - asking the employee his or her citizenship and place of birth - poses significant legal risks under two federal employment laws. Title VII of the Civil Rights Act proscribes discrimination on the basis of national origin, and a person's citizenship and place of birth usually align with his or her national origin. Moreover, the Immigration Reform and Control Act of 1986 (IRCA) prohibits discrimination on the basis of "citizenship status." By asking an employee his or her citizenship status, which is rarely a relevant job qualification, an employer sets itself up for a claim of discrimination under both statutes.
The National Security, Government Contract and Bona Fide Occupational Qualification Exceptions
There are three statutory exceptions that suggest a way out of this problem, but they are all problematic. Title VII's so-called "national security exception" allows an employer to engage in an otherwise unlawful employment practice where a position "(1) . . . is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and (2) such individual has not fulfilled or has ceased to fulfill that requirement." While an argument could be made that asking a person about his or her citizenship and place of birth is a "requirement imposed in the interest of" national security because export control laws seek to prevent enemies of the United States from acquiring and using controlled technology, cases interpreting the national security exception have focused almost exclusively on background investigations prior to receiving a security clearance: thus, the government may deny a security clearance because a person has family members who are citizens of an enemy country.
Separately, IRCA permits unlawful employment practices based on citizenship if they are "required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government." Yet while this exception likely authorizes an employer to deny an employee access to controlled technology when an export license is unavailable, it does not clearly grant an employer authority to ask about citizenship and place of birth prior to employment, unless a government contract specifically requires an employer to directly ask that question. Instead of requiring that an employee be of a particular citizenship or have been born in a specified country, the Regulations mandate that an employer apply for an export license under certain conditions (i.e., it hires an employee of a certain nationality for work exposing him or her to controlled technology). For this reason as well, Title VII's exception allowing employers to take action on the basis of national origin, where it "is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise," is not directly applicable.
Technical and Legal Solutions to the Problems Posed by the Form I-129 Certification
The first challenge - determining whether a prospective employee's employment will involve, either initially or thereafter, access to controlled technology - is essentially a technical one. An employer must put in place systems segregating, and monitoring access to, controlled technology to prevent accidental disclosure causing the employer to breach the attestation. This would include systems blocking electronic access (via a computer network) and physical access (via records or technology housed in a physical location). If an employee is being hired for a specific position, the HR department must gather information as to whether it will require or involve access to controlled technology. But what if the employee is not being hired for a specific position, or is being hired for an initial position that would not require an export license but could be re-assigned in the future to one that does? The key in this situation is to clearly inform managers about the company's export control obligations and require them, as part of their duties, to monitor such access and inform HR immediately when this may occur, allowing the company to supplement its attestation and apply for an export license if necessary.
As for the second challenge, faced with the Hobson's choice of making an attestation about a prospective employee's citizenship and place of birth without complete knowledge of either, or triggering an employment discrimination claim by asking about citizenship and place of birth, what can an employer do? Employers must, at some point, ask an employee about his or her citizenship and place of birth to correctly fill out the Form I-129. Given the risks of a discrimination claim, employers should ideally do so only after extending an offer of employment. This may still place employers in a bind, because an initial offer may need to be rescinded if it becomes clear that an export license will be required and one cannot be obtained. To protect the company, an employer handling types of government contracts requiring export licenses should announce, in all job postings, that export control laws require the company to determine whether a license is necessary for certain positions, including by inquiring as to the applicant's citizenship and place of birth. Further, the announcement should make it clear that, should an employee's position (either initially or because of a subsequent reassignment) and nationality require such a license, his or her offer of initial employment and continued employment thereafter will be conditioned on the company's ability to obtain and maintain such a license. Finally, the posting should make it clear that failure to obtain or maintain such a license - or the employee's failure to timely cooperate in obtaining or maintaining such a license - is a ground for immediate termination for cause.
While ensuring that job requirements concerning export licenses are established as early in the hiring process as possible should significantly reduce the risks of adverse litigation, balancing the competing statutes at issue is relatively complex and must be analyzed on a case-by-case basis. As the need for trained foreign workers expands, employers will increasingly face difficult issues like the ones outlined above. The assistance of trained and experienced counsel can help companies navigate the tricky compliance issues at this intersection of immigration, export control, and employment laws.