New H1-B/O-1 Export Compliance Form for Compliance with ITAR/EAR Regulations



TO:                 All Principal Investigators


FROM:            Nelson Sakamoto

                        RCUH Director of Human Resources


SUBJECT:     ITAR/EAR Guidelines for H1-B and O-1 Visa Compliance



Effective February 20, 2011, the United States Citizenship and Immigration Services (USCIS) requires employers to use the revised I-129 Petition for a Nonimmigrant Worker form when petitioning for H-1B or O-1 non-immigrant visas.  The primary change made to the revised I-129 form is the addition of Part 6: Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the U.S.  This change will require the Research Corporation of the University Of Hawaii (RCUH) to certify whether a non-immigrant worker will be performing work that is subject to the U.S. Department of State’s International Traffic in Arms Regulations (ITAR) or the U.S. Department of Commerce’s Export Administration Regulations (EAR) and if an export license will be required.


WHAT IS AN ITAR/EAR EXPORT?:  Both ITAR and EAR are federal laws that prohibit the “export” of controlled technology and technical data to foreign countries and citizens of these countries identified in these regulations.  U.S. employers may export these technologies provided they meet the requirements specified in the ITAR and EAR regulations (e.g., obtain an applicable license to export).  An export is not limited to shipping goods/services to a foreign country, it also includes the release of controlled technology or technical data to a foreign national working in the U.S.  ITAR and EAR regulations have very strict rules against disclosure (including oral or visual disclosure) or transferring controlled technology or technical data to a foreign person working in the U.S.  To comply with these regulations, the RCUH must accurately complete the new I-129 form.  Therefore, Principal Investigators must understand the ITAR/EAR regulations as it applies to your own research project(s).  Principal Investigators must be able to determine whether any technology or technical data is applicable to ITAR and/or EAR.  If so, will any of the technology or technical data be released to or be accessed by a foreign national.  Finally, Principal Investigators must determine whether an export license may be required from the Department of Commerce Bureau of Industry & Security or the Department of State Directorate of Defense Trade Controls before releasing such technology or technical data to the foreign national.


NEW RCUH COMPLIANCE FORM (Initial Certification and Follow-up Certification):  To comply with the new requirements of the revised USCIS I-129 application, we have instituted a new “RCUH H1-B/O-1 Export Compliance Certification” form (RCUH Form I-100) that must be completed and submitted along with the H-1B/O-1 Request Form(s).  On the RCUH H-1B/O-1 Export Compliance Certification form, you will be required to acknowledge that you have reviewed and understand, and have/will continue to comply with the U.S. Munitions List [identified in the Arms Export Control Act (22 U.S.C. 2778)] and the Commerce Control List [identified in the Export Administration Act (50 U.S.C. 2401)].  Further, you will need to certify that if your foreign national employee’s (non-immigrant worker’s) work assignments or work environment changes where exposure to ITAR/EAR regulated technologies may be present, a new certification form will be submitted to the RCUH Human Resources Department immediately.


PENALTIES (FINES/IMPRISONMENT):  Falsification of the “H1-B/O-1 Export Compliance Certification” form (RCUH Form I-100) will lead to immediate termination of your employee’s employment/visa status and all support provided to you and your program by the RCUH.  This is necessary since the penalties for misrepresentation to the USCIS are significant.  The importance of providing correct attestations with respect to the export control requirements are underscored by the penalties for providing incorrect information.  Form I-129 requires the employer to certify under penalty of perjury under the laws of the U.S. that the petition and the supplemental evidence are honest and accurate to the best of the employer’s (and Principal Investigator’s) knowledge.  Violations of the ITAR/EAR regulations may result in, but not limited, to the following penalties:


·         International Traffic in Arms Regulations (ITAR)

Ø  Criminal Sanctions:

o   Employer fines of up to $1,000,000 for each violation

o   Individual fines of up to $250,000 or imprisonment for up to ten years, or both, for each violation.

Ø  Civil (Administrative) Sanctions: Fines of up to $12,000 for each violation, except that the fine for violations involving items controlled for national security reasons is up to $120,000 for each violation.

Ø  Other Sanctions: Denial of export privileges and/or Seizure/Forfeiture of goods.


·         Export Administration Regulations (EAR)

Ø  Criminal Sanctions:

o   Employer fines of up to the greater of $1,000,000 or five times the value of the exports for each violation

o   Individual fines of up to $1,000,000 or up to ten years in prison, or both, for each violation.

Ø  Civil (Administrative) Sanctions: Fines of up to $500,000 for each violation.

Ø  Other Sanctions: Denial of export privileges, exclusion from practice, and/or Seizure/Forfeiture of goods.


QUESTIONS?:  Any questions relating to ITAR and/or EAR compliance should be directed to Leonard R. Gouveia Jr., the University of Hawaii Administrative and Export Compliance Officer, Office of the Vice President for Research, at (808) 956-4740, or [email protected].