DHS’s Bureau of Citizenship and Immigration Services (“BCIS”) wants to make your life more difficult if you hire H-1B workers and need a deemed export license to do so. Under a proposed revision in the form used to apply for H-1B visas for skilled technical workers, employers will now need to obtain the deemed export license from the Bureau of Industry and Security (“BIS”) before applying for the H-1B visa. Previously, the license needed to be obtained before the foreign worker could be given information on the controlled technology, but the employer could file for the visa and the deemed export license simultaneously. Now, the export license must be obtained before the visa can even be submitted to BCIS. Here is a copy of the proposed form. Check out page 6.

Oddly, this requirement is only for employees needing BIS deemed export licenses. Those requiring a deemed export license from the Directorate of Defense Trade Controls (“DDTC”) for foreign workers involved with technologies controlled by the United States Munitions List (“USML”) can apply for the visa and the license at the same time.

BCIS, with typical transparency, announced the revision and asked for comments in this public notice in the Federal Register. The public notice doesn’t reveal the nature of the proposed changes or how to find them other than suggesting that employers go try to find the proposed forms at regulations.gov. Good luck with that. We can only thank a loyal reader for tracking down the proposed, but undisclosed, changes in the visa application form.

Comments on this proposed change are due by April 9, 2010. Comments can be submitted by fax to 202–272–8352, or via e-mail to [email protected].

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