new form i-129 “export control” attestation

U.S. Citizenship & Immigration Services has announced a new version of the Form I-129, Petition for a Nonimmigrant Worker, which is used to sponsor foreign nationals for temporary employment in the United States. The new form goes into effect on November 23, 2010 and Immigration Services will stop accepting previous form versions as of December 23, 2010.

One substantive change to the form includes a section specifically related to U.S. export controls. A U.S. employer seeking to sponsor a foreign worker in H-1B, H-1B1 (Chile/Singapore), L-1 and O-1A visa status will now be required to attest to the following:

“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:

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 either U.S. Department of Commerce 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.”

The federal regulations governing the EAR and the ITAR prohibit the unlicensed export of specific technologies for reasons of national security or protection of trade. U.S. employers have always been liable for export control violations, but the change to the form is the result of an effort to increase data collection and improve enforcement capabilities. The change is also a means of improving enforcement of the Deemed Export Rule, which states, in part: “An export of technology or source code (except encryption source code) is “deemed” to take place when it is released to a foreign national within the United States.” Any foreign national is subject to the Deemed Export Rule except a foreign national who (1) is granted permanent residence, (2) is granted U.S. citizenship; or (3) is granted status as a “protected person” under 8 U.S.C. 1324b(a)(3). This includes all persons in the U.S. as tourists, students, businesspeople, scholars, researchers, technical experts, sailors, airline personnel, salespeople, military personnel, diplomats, etc.

It is imperative that all employers who employ foreign nationals on work visas in the U.S. review their internal policies and procedures to ensure access to restricted technologies is secured. If a company does not have appropriate written policies and procedures in place, it should take immediate action to develop and implement written policies and procedures to secure access to restricted technologies by unauthorized foreign national employees.

Wildes & Weinberg, P.C. recommends that all U.S. companies who employ foreign nationals in H-1B, L-1 and/or O-1 visa status review their internal procedures to make certain that foreign national employees’ access to restricted technologies complies with EAR and ITAR requirements. We further recommend that employers who believe they may be subject to the licensing requirements of EAR or ITAR contact our office for a consultation to ensure necessary compliance.