The Deemed Export Attestation on the New Form I-129

Litwin Practice Advisory: March 28, 2011

This advisory explores the new "deemed export" attestation for H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners, that USCIS has included on a newly revised version of Form I-129 (rev. 11/23/2010).


Table of Contents

  • Deemed Export Basics - Communication to an FN is an Export
  • Deemed Export USCIS Form I-129 Attestation
  • Deemed Export USCIS Form I-129 Instructions
  • Deemed Export Attestation & Your Organization
  • More Changes to USCIS Form I-129
  • Background on the Deemed Export Attestation

Deemed Export Basics

Technology or source code is considered to be exported not only under the traditional sense of shipping it overseas; an export of technology or source code can also be "deemed" to take place when it is released to a foreign national within the United States. Technology or code is "released" for export when it is "available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology." A deemed export to any foreign national must be authorized. Deemed export compliance requires an assessment as to whether a license is required before a release to any foreign national is made. U.S. entities must apply for a deemed export license when: (1) they intend to transfer controlled technologies to foreign nationals in the United States; and (2) transfer of the same technology to the foreign national's home country would require an export license.

Companies have been required to comply with export control laws for many years. Companies that are not actively selling products may not have been aware that export license rules apply to them. Companies that export goods have generally been in compliance, but export compliance is not generally managed by the business unit that prepares or coordinates the filing of I-129 petitions. All companies that have technology are subject to the "deemed export" regulations that hold foreign nationals who gain access to controlled technologies are equivalent to a company exporting the technology to foreign markets. For the business unit that typically files petitions on behalf of foreign nationals, such as Human Resources, to properly complete the deemed export attestation on behalf of the petitioner, the business unit will first have to inquire of the office at his or her organization that handles export control issues to develop an organizational protocol for completing the form. Offices that might typically be charged with export control duties include: Compliance Office, General Counsel Office, Technology Office, and Research. If no export compliance office exists within the organization then it is likely that the duties will fall upon human resources to establish an export compliance protocol for the deemed export license determination and completion of the attestation.

Even though most organizational immigration practitioners are not charged with export control compliance, being familiar with the terms and issues that company export control compliance units deal with can help when incorporating this new I-129 attestation requirement into organizational business processes. That being said, immigration practitioners are advised to consult additional sources of general background information on export controls.

The Deemed Export Attestation

A new "deemed export" attestation is the key change on the new Form I-129. This attestation must be made by H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners. The, USCIS announced on December 22, 2010 that H-1B, H-1B1, L-1, and O-1 petitioners who file the new form will have to complete the new deemed export compliance attestation in Part 6 of the new form, after February 20, 2011. Petitioners should finalize their protocols for completing the attestation before filing H-1B, H-1B1, L-1, and O-1 petitions.


Figure 1 : Deemed Export Attestation in Part 6 of the new Form I-129

Draft Deemed Export

The Deemed Export Attestation Instructions

I-129 instructions http://www.uscis.gov/files/form/i-129instr.pdf


Figure 2: \Deemed Export Attestation instructions for new Form I-129 The instructions explain the requirement as follows:

Certification Pertaining to the Release of Controlled Technology or Technical Data to Foreign Persons in the United States

U.S. Export Controls on Release of Controlled Technology or Technical Data to Foreign Persons. The Export Administration Regulations (EAR) (15 CFR Parts 770-774) and the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130) require U.S. persons to seek and receive authorization from the U.S. Government before releasing to foreign persons in the United States controlled technology or technical data. Under both the EAR and the ITAR, release of controlled technology or technical data to foreign persons in the United States-even by an employer-is deemed to be an export to that person's country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. Government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, L-1 or O-1A beneficiaries.

Requirement to Certify Compliance with U.S. Export Control Regulations. The U.S. Government requires each company or other entity to certify that it has reviewed the EAR and ITAR and determined whether it will require a U.S. Government export license to release controlled technology or technical data to the beneficiary. If an export license is required, then the company or other entity must further certify that it will not release or otherwise provide access to controlled technology or technical data to the beneficiary until it has received from the U.S. Government the required authorization to do so. The petitioner must indicate whether or not a license is required on Page 6, Part 7 of Form I-129.

Controlled Technology and Technical Data. The licensing requirements described above will affect only a small percentage of petitioners because most types of technology are not controlled for export or release to foreign persons. The technology and technical data that are, however, controlled for release to foreign persons are identified on the EAR's Commerce Control List (CCL) and the ITAR's U.S. Munitions List (USML). The CCL is found at 15 CFF Part 774, Supp. 1. See http://www.access.gpo.gov/bis/ear/ear_data.html#ccl. The USML is at 22 CFR 121.1. See http://www.pmddtc.state.gov/regulations_laws/itar.html. The EAR-controlled technology on the CCL generally pertains to that which is for the production, development, or use of what are generally known as "dual-use" items. The ITAR-controlled technical data on the USML generally pertains to that which is directly related to defense articles.

The U.S. Department of Commerce's Bureau of Industry and Security administers the CCL and is responsible for issuing licenses for the release to foreign persons of technology controlled under the EAR. The U.S. Department of State's Directorate of Defense Trade Controls (DDTC) administers the USML and is responsible for issuing licenses for the release to foreign persons of technical data controlled under the ITAR. Information about the EAR and how to apply for a license from BIS are at www.bis.doc.gov. Specific information about EAR's requirements pertaining to the release of controlled technology to foreign persons is at www.bis.doc.gov/deemedexports. Information about the ITAR and how to apply for a license from DDTC are at www.pmdtc.gov. Specific information about the ITAR's requirements pertaining to the release of controlled technical data is at http://www.pmddtc.state.gov/faqs/license_foreignpersons.html.

Deemed Export Attestation & Your Organization

Since the offices that handle deemed export compliance are usually other than the office that handles I-129 processing, implementing the new deemed export attestation becomes an organizational issue. The office that processes Form I-129 can be proactive on this issue by taking the following actions:

  • Become familiar with the I-129 attestation language.
  • Be able to identify the underlying sources of authority regarding deemed exports, by reading the I-129 deemed export attestation instructions.
  • Identify the unit(s) at your organization that are in a position to make an attestation regarding deemed exports, and meet with those units to explain the new requirement and discuss procedural issues.
  • If there is no such office, consult with organizational leadership and counsel to identify how and who will make the attestation for the organization.
  • Develop an organizational sign-off form that can be completed by the office that handle deemed export compliance.
  • Implement the new process.
  • Maintain attestation records in the Deemed Export Control File.
  • Continually educate the organization about the process.

More Changes To Form I-129

The revised form I-129 also includes other changes, such as:

  • Part 3, Beneficiary information, for beneficiaries in the United States, the form:
  • Asks for SEVIS number of beneficiary if the beneficiary is an F, M, or J nonimmigrant
  • Includes a parenthetical instruction at the Date Status Expires box to read "(mm/dd/yyyy) or D/S"; the current instruction does not explicitly say D/S
  • Part 4, Processing information, includes a new question that asks about prior status as J-1 or J-2, and for copies of IAP-66/DS-2019 or J visa stamp page
  • Part 5, Basic information about the proposed employment and employer:
  • New questions ask if an itinerary is included with the petition (Y/N) and whether the beneficiary will work "off-site" (Y/N)
  • New question on whether beneficiary will work exclusively in the Commonwealth of the Northern Mariana Islands (CNMI)
  • Asks for current number of employees in the U.S.; current form asks for current number of employee
  • Part 7, Signature, contains new certification language for the petitioner to recognize that USCIS can conduct "on-site compliance reviews"
  • Part 9, Explanation page, is a new "attachment" page provided to include further explanations concerning the petition. The current form allowed petitioners to simply put required additional explanations "on a separate page." The new "attachment" page requires a signature.
  • Section 1 of the H Supplement adds statements that the petitioner will:
  • Obtain and post a new LCA when the employee is "assigned to a position in a new location"
  • Not charge back the ACWIA fee to the beneficiary, and will consider any other required reimbursement as "an offset against wages and benefits paid relative to the LCA."
  • On the H-1B Data Collection and Filing Fee Exemption Supplement:
  • Questions are added to determine exemption status regarding the additional fee of $2,000 for H-1B petitions and $2,500 for L petitions, if the petitioner employs 50 or more employees (part-time and full-time combined) and more than 50 percent of the petitioner's employees are H-1B, L-1A, L-1B, or L-2 non-immigrants (also included on the L supplement). Since August 13, 2010, petitioners have had to annotate their filings with an attestation concerning this requirement [ click here for background] while Form I-129 was being amended to include questions that dealt with this requirement.
  • Improved questions for establishing the basis for a claim of exemption from the H-1B cap count
  • New questions and attestations on off-site placement of H-1B workers

Background on the Deemed Export Attestation On Form I-129

The new form became available on November 23, 2010. However, on December 22, 2010, USCIS announced that H-1B, H-1B1, L-1, and O-1 petitioners who file the new form did not have to complete the new deemed export compliance attestation in Part 6 of the new form, until February 20, 2011. And so, although the new version of the form (rev. 11/23/2010 or later) must still be used as of December 23, 2010, the deemed export compliance attestation on that form did not have to be completed on petitions filed before February 20, 2011.

On February 8, 2010, U.S. Citizenship and Immigration Services (USCIS) published a notice in the Federal Register with broad changes to the Form I-129 petition for nonimmigrant workers. Fortunately, in response to public comment, the proposed changes were scaled back. On June 30, 2010, USCIS revised the deemed export attestation changes in its present form to require H-1B, L-1, and O-1 petitioners to attest that "deemed export" control rules have been complied with in relation to the beneficiary of the petition.