U.S. Export Controls and Foreign National Employees: What Employers Should Know

U.S. employers hiring foreign national employees in technology, engineering, aerospace, semiconductor, defense, advanced computing, and other sensitive industries should consider export-control compliance as part of the immigration process.

The issue is not simply whether an employee will physically export a product from the United States. Under U.S. export-control laws, providing certain controlled technology or technical data to a foreign person in the United States can itself constitute an export, commonly referred to as a “deemed export.”

For employers sponsoring certain nonimmigrant workers, this issue also appears directly in the immigration petition process.

Export Controls and Form I-129

USCIS Form I-129 presently requires an export-control certification for petitions filed in the following classifications:

• H-1B
• H-1B1 for nationals of Chile and Singapore
• L-1
• O-1A

The petitioner must certify that it has reviewed the applicable Export Administration Regulations, or EAR, and International Traffic in Arms Regulations, or ITAR, and determined either:

1. that no license is required before releasing controlled technology or technical data to the beneficiary, or
2. that a license is required and the employer will prevent access to the controlled technology or technical data until the required authorization is obtained.

This certification should therefore not be treated as a routine checkbox completed without input from the employer.

What Is a “Deemed Export”?

The concept can be counterintuitive.

Under the EAR, releasing certain controlled technology to a foreign person in the United States may be treated as an export to that person's country for export-control purposes. A release can potentially occur through access to technical information, demonstrations, oral briefings, computer systems, source code, engineering specifications, laboratory information, or other controlled technology.

In other words, the employee does not have to send equipment overseas for export-control rules to become relevant.

The Department of Commerce's Bureau of Industry and Security, or BIS, administers the EAR. Whether a license is required depends on several factors, including the particular technology involved, its export classification, the applicable reason for control, the foreign person's nationality or permanent residence, the end use, and available license exceptions.

EAR and the Commerce Control List

The Export Administration Regulations (EAR) regulate many commercial and “dual-use” items, software, and technologies that may have both civilian and military or national-security applications.

Employers dealing with controlled technology should determine, among other things:

• whether the technology is subject to the EAR;
• whether it is listed under an Export Control Classification Number, or ECCN, on the Commerce Control List;
• what technology the employee will actually need to access;
• whether the employee's nationality or permanent residence triggers licensing requirements;
• whether a license exception or exclusion applies; and
• whether additional end-user, end-use, or restricted-party controls must be considered.

These questions have become particularly significant in sectors involving advanced semiconductors, semiconductor manufacturing equipment, quantum technology, advanced computing, artificial intelligence infrastructure, aerospace, and other strategically sensitive technologies.

ITAR and Defense-Related Technology

The International Traffic in Arms Regulations (ITAR), administered by the U.S. Department of State's Directorate of Defense Trade Controls, apply to defense articles, defense services, and technical data subject to the U.S. Munitions List.

ITAR restrictions can be considerably more stringent than ordinary commercial export controls.

For companies performing defense-related work, access by a foreign person to controlled technical data can itself create an export-control issue. Oral, visual, electronic, or documentary disclosure may require authorization unless an applicable exemption or other authorization permits the disclosure.

Employers in the defense, aerospace, satellite, military technology, and related industries should therefore address ITAR issues before giving a foreign national employee access to restricted projects, systems, laboratories, technical drawings, or data.

What About TN, E-2 and Other Visa Categories?

An important distinction is often overlooked.

The export-control certification contained in Form I-129 is currently required only for H-1B, H-1B1, L-1, and O-1A petitions. It is not a general immigration requirement applicable to every temporary visa classification.

That does not mean export-control laws disappear when an employee holds TN, E-2, F-1 OPT, J-1, or another immigration status.

EAR and ITAR obligations arise under export-control law, independently of whether USCIS asks the employer to make an export-control certification in the immigration filing.

Accordingly, an employer hiring a Canadian engineer in TN status, for example, may still need to evaluate the individual's access to controlled technology even though the TN classification itself does not require the Form I-129 export-control certification.

Practical Steps for Employers

Employers sponsoring foreign national employees should consider incorporating export-control review into the immigration onboarding process, particularly where employees will work with sensitive technology.

Useful steps may include:

1. Identify the technology the employee will access.
   Review the employee's actual job duties, projects, computer permissions, technical data, laboratories, software, equipment, and systems.
2. Determine whether controlled technology is involved.
   Immigration personnel generally should not make this determination alone. Appropriate technical, export-compliance, or legal personnel should be involved.
3. Review nationality and permanent residence.
   Licensing requirements may depend in part on the foreign person's applicable country or countries for export-control purposes.
4. Determine whether authorization is required before access begins.
   If a license is necessary, access controls may need to remain in place until authorization is obtained.
5. Use technology-control procedures where appropriate.
   Companies may need restrictions involving servers, laboratories, source code, technical documents, project teams, physical facilities, or other controlled information.
6. Coordinate immigration and export-control compliance.
   The immigration petition should be consistent with the employer's actual export-control determination, particularly when Form I-129 requires the employer to make the certification.

Why This Matters During the Immigration Process

Export controls and immigration law are separate regulatory systems, but they intersect when U.S. companies employ foreign professionals.

For an H-1B, L-1, or O-1A petition, the issue may arise directly when the employer signs Form I-129. For other foreign national employees, export-control obligations may exist even though no immigration form asks the employer to certify compliance.

Employers should therefore identify potential export-control issues early, ideally before filing the immigration petition and before providing the employee access to potentially controlled technology.

For companies operating in highly regulated or sensitive technology sectors, coordination among immigration counsel, internal compliance personnel, technical personnel, and specialized export-control counsel can help prevent inconsistencies between the immigration filing and the employer's broader regulatory obligations.

This article is provided for general informational purposes only and does not constitute legal advice. Export-control requirements are highly fact-specific. Employers with potential EAR or ITAR issues should obtain advice appropriate to the technology, personnel, countries, and activities involved.