The New Export Control Attestation Requirement on Form I-129

Wednesday, December 15th, 2010

The new United States Citizenship and Immigration Services (USCIS) Form I-129 requires employers filing on behalf of foreign nationals to certify that they have (1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and (2) have made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national. If an export license is required to be obtained before such release, the employer must attest that the worker will not be exposed to covered technologies without first obtaining an export license covering the foreign worker. We wish to make sure that you do not make a misrepresentation on Form I-129 in this regard, which in itself would be a violation of federal law. Read all of the forms and know that you are signing under penalty of perjury.

Be mindful of the new attestations and the relevant instructions. Ensure that the I-129 signatory has directly addressed the issue before signing the I-129. One way to do this would be to specifically send the text of the I-129 attestation below to your company's general counsel or export compliance counsel to ensure accuracy and continuity with export classification and licensing practices company-wide. Export classifications and licensing determinations can be complex. If your company requires additional expertise in making these determinations, and unless you understand all aspects of the export control regulations, it is best to contact us in advance for further assistance by an attorney who has expertise in export control law to make the determination as to which box to check.

Q: Where is the export control question on the new Form I-129 and what does it say?

Part 6 of the new version of Form I-129 states:

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 to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The petitioner must check one of the above boxes on the form.

Q: What is controlled "technology" and "technical data"?

"Technology" and "technical data" that are controlled for release to foreign persons are identified on the Export Administration Regulations (EAR) Commerce Control List (CCL) and the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers the EAR. The Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR. The EAR uses the term "technology" to refer to information for the development, production or use of "dual-use" products or software. "Technology" that is required for the development, production or use of items on the EAR's CCL may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use. An export of controlled technology or technical data can occur when it is disclosed to or transferred to a foreign person, whether in the United States or abroad. Specifically, section 734.2(b)(2)(ii) of the EAR (15 CFR §734.2(b)(2)(ii)) states that an export of technology to a foreign national in the United States is "deemed to be an export to the home country or countries of the foreign national." This is commonly referred to as the "deemed export" rule.

While the ITAR does not use the phrase "deemed exports," the ITAR contains a similar concept. Section 120.17(a)(3) of the ITAR (22 CFR §120.17(a)(3)) states that an export occurs when "technical data" is disclosed (including oral or visual disclosure) or transferred to a foreign person in the United States.

Therefore, if an export license is required to export EAR controlled technology or ITAR controlled technical data to a certain country, an export license or other authorization will be required to disclose or transfer such technology to a foreign national of that country who is located in the United States.

Q: Where can I find the applicable regulations?

BIS is responsible for issuing "deemed export" licenses for the release to foreign persons of EAR controlled technology. DDTC is responsible for issuing export licenses and authorizations for the release of ITAR controlled technical data to foreign nationals in the United States.

Information about the EAR and how to apply for a deemed export license from BIS can be found at www.bis.doc.gov.

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 an export license from DDTC can be found at www.pmddtc.state.gov.

Information about the ITAR's requirements pertaining to the release of controlled technical data can be found at http://www.pmddtc.state.gov/faqs/license_foreignpersons.html.

Q: Why is this issue relevant to a visa petition on behalf of a nonimmigrant foreign national?

As noted above, U.S. law prohibits the "export" of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. U.S. law treats as an export the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not engage in any other exporting activities.

Technology or source code is considered "released" for export when it is made 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. Such exports of controlled technology or technical data must be authorized through an export license issued by the appropriate government agency before release to the nonimmigrant foreign national. Therefore, to properly complete the new I-129 form, an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license may be required to be obtained from BIS or DDTC before releasing such technology or technical data to the foreign national.

Q: To what visa classifications does the new attestation apply?

H-1B, H-1B1, L-1, and O-1A

Q: When does the new form take effect?

I-129 petitions received by USCIS on or after December 23, 2010 must be on the new version of the form that includes the reference "Rev. 11/23/10" in the lower right hand corner. USCIS will reject petitions using previous editions of the form beginning on this date.

Q: Where can I learn more?

In addition to the BIS and DDTC links above, the BIS web site has a series of six training modules called "Essentials of Export Controls." The training modules can also be downloaded in .pdf format.