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U.S. Citizenship and Immigration Services (USCIS) has released a new version of Form I-129, "Petition for a Nonimmigrant Worker," which is filed by employers seeking to employ foreign nationals in the U.S. on a temporary basis under various nonimmigrant work visas. Effective February 20, 2011, the revised form requires employers filing visa petitions seeking H, L, or O nonimmigrant status for their foreign national employees to certify that they are in compliance with U.S. export licensing requirements. U.S. law prohibits the “export” of certain technology and technical data to foreign nationals located within the United States without the proper export license.

When an employer makes technology or data accessible to a foreign national, it may be considered a "deemed export," even though nothing was physically transmitted or exported across the U.S. border. If the technology or data is listed on an export control list, and depending upon the foreign national's particular home country, the employer may be required to obtain a government license before the foreign national is permitted to work with or have access to the covered technologies or technical data. While USCIS expects that the export licensing requirements will affect only "a small percentage of petitioners," it is critical that employers anticipating the need to file H, L, or O visa petitions examine these requirements in more detail to ensure no misrepresentations are made on Form I-129 in regards to the new export control license question, which could be considered a violation of federal law.

What are employers specifically required to certify on the new Form I-129?

The new certification reads as follows:

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 [U.S. Department of Commerce's] Export Administration Regulations (EAR) and the [U.S. Department of State's] International Traffic in Arms (ITAR) and has determined that:

      1. 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
      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.

What if my company does not export actual goods or services?

Under the "deemed export" rule, even if your company does not export tangible goods or services, it may still be subject to export licensing requirements if the company makes controlled technology and technical data accessible to foreign national employees. An export of technology or source code (except encryption source code) is "deemed" to take place when it is released to a foreign national in the United States. Technology 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. Further, the U.S. Department of State, which administers the ITAR, considers an export to have occurred even in those instances where the foreign national employee simply has access to technical data, such as through an unprotected hard drive or shared Intranet.

Does the revised Form I-129 create new requirements for my company?

Not necessarily. The export license requirements provided for in the EAR and ITAR have been in existence for many years. However, this is the first time that employers are being asked to certify their compliance with the regulations on an immigration petition. Although the requirements are not new, many employers are simply unaware of the regulatory obligations regarding export restrictions and licensing requirements for their foreign national employees. For those employers who do have an internal export control compliance program, the revised Form I-129 presents a good opportunity to review existing export control processes. For those employers who have never addressed these requirements, it will be critical for them to do so if they employ foreign national workers in the U.S.

Do the EAR and ITAR requirements impact all of my company's foreign national employees?

No. For purposes of EAR and ITAR, U.S. citizens, lawful permanent residents (i.e. "green card" holders), asylees and refugees are considered U.S. persons not subject to controls. Persons in the U.S. on nonimmigrant visas are generally covered by the rules. For dual nationals, the Commerce Department generally considers the last place of permanent residence or the last place citizenship was obtained to be the nationality for purposes of determining the country coverage under the deemed export rules. Employers should keep in mind that the new Form I-129 only requires a deemed export certification with respect to the specific beneficiary of the nonimmigrant visa petition. However, an employer must still ensure compliance with the EAR and ITAR for its entire workforce or risk serious civil and criminal penalties.

How do I know whether the technology with which a foreign national works requires an export license?

"Technology" and "technical data" that are controlled for release to foreign persons are identified on the EAR Commerce Control List (CCL) and the 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 CCL mostly contains dual-use items which are predominantly commercial items that have a potential defense, nuclear or other prohibited end-use. The USML contains defense articles which are primarily military items.

It should be emphasized that not all technologies are restricted from all countries, and just because a technology or software is on the CCL or USML does not mean it will be restricted. For example, licenses are often not necessary for many close U.S. allies. The regulations also contain numerous license exceptions.

What are the next steps my company should take?

Export classifications and licensing determinations can be complex. Not all controlled technologies qualify as deemed exports, and not all deemed exports require licenses. For this reason, we recommend that you seek counsel from an expert in export control law to determine whether your foreign national employees might require an export control license from the U.S. Department of Commerce or U.S. Department of State. Your company might also have an in-house compliance officer who can help make this determination.

If you have any questions about the new Form I-129 or would like more information on export licensing requirements, please do not hesitate to contact one of our immigration attorneys.