New Export Control Certification on Form I129 (H‑1B, L, O, and other Nonimmigrant Petitions) Requires Employers to Plan Early:
Fiscal Year 2012 H1B Filings Start April 1, 2011
On November 23, 2010, USCIS released a new version of Form I‑129, Petition for a Nonimmigrant Worker, that included a new Part 6, “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” Effective February 20, 2011, USCIS requires that employers filing nonimmigrant employment petitions based on Form I‑129 complete this certification for all H‑1B, H‑1B1, L‑1 and O‑1A petitions.
Every employer filing a Form I‑129 petition for the H, L, or O visa classification is required to certify that it has reviewed the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (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, the employer 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 EAR and the ITAR both prohibit (without a license) the export or transfer of controlled technology to foreign persons whether they are in the United States at the time of the transfer or abroad. Under the EAR, a transfer of controlled software or technology to foreign persons in the United States is referred to as a deemed export - in other words, the transfer is deemed to be an export to the foreign person’s home country. Such transfers may require companies to obtain a license from the Commerce Department’s Bureau of Industry and Security. Under the ITAR, the transfer of controlled technical data to foreign persons, whether in the U.S. or abroad, is an export that may require a license. Transfers of controlled technology or software occur in a variety of ways: Access to computer network servers containing controlled technology; providing drawings, blueprints or specifications to an individual; technical training; collaborations with interns, consultants or the foreign national employees of a company’s customers; meetings; plant visits; telephone or conference calls; and emails and faxes.
The certification is specific to each foreign national and the nature of his or her employment with the employer. In order to properly and timely complete the certification for any April 1, 2011 H‑1B filing, it is important for employers to determine EAR and ITAR licensing issues as soon as possible.
If assistance is needed in making this determination, Fredrikson & Byron can provide an export control evaluation.
Please contact our immigration team if you have any questions.