USCIS adds an attestation regarding U.S. Export Controls to the Form I-129
The USCIS is releasing a new version of the Form I-129 today. As you know, the Form I-129 is used to file petitions for H-1B, L-1, O-1, and TN statuses. There are a number of changes to this form, primarily in the way USCIS asks us to report certain information. Significantly, however, the form includes a new attestation, that must be signed by the employer, as follows:
"With regard 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: (1) A license is not required from either U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or (2) 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 by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary." (emphasis added)
Background: The export of certain technology and technical data is controlled by the U.S. government, in that some exports are prohibited entirely while others are prohibited without first applying for a license. Most controlled technologies are considered "dual-use" (e.g., they have both civilian and miliatry uses), or are related to the defense or nuclear industries. These technologies are controlled by different Federal departments, including the Departments of Commerce, State, and Energy.
More specifically, the attestation on the new Form I-129 is referring to a concept known as "deemed export." Under this concept, the release of controlled technology to a foreign national within the United States is considered an export of that technology to the foreign national's home country. Therefore, if the export of the technology to that country is prohibited, the release of the technology to the foreign national is prohibited. Likewise, if an export license is required prior to the export of the technology to the foreign national's home country, then a license must be obtained from the appropriate government official prior to the release of the technology to the foreign national in the U.S.
Some important points to keep in mind: (1) Generally, these rules apply to all nonimmigrants, including holders of the following visas: H-1B, L-1, B-1/B-2, TN. They do not apply to U.S. permanent residents or protected persons, including asylees or refugees; (2) The concept of the "release" of technology is complex. In some contexts, it can happen simply through a visual inspection or be relayed orally, and in other contexts it may require a person to be more actively involved in the technology's design and/or implementation; (3) Not all technology is controlled by the government and, even if a certain technology is controlled, there may be a license-exception available; (4) The new Form I-129 attestation does not create or alter existing deemed export rules - these rules have been in place for years.
Conclusion: As stated above, the Form I-129 requires employers to confirm that they have reviewed the relevant export regulations and have determined that either a license is not required or that, if a license is required, one will be obtained prior to the release of technology to the foriegn national beneficiary. This is a complex area of of law, and we recommend that you talk to your in-house or outside corporate counsel to determine the extent to which your organization's technology is covered by these regulatory regimes, if at all. Should you determine that a license is required for a current or future nonimmigrant employee, please let us know and we can assist you and your counsel as you determine the next steps.
Please note that the USCIS has indicated that we will be able to continue to use the current Form I-129 until December 22, 2010. Please also note that there continue to be H-1Bs available for fiscal year 2011.
