“Deemed Export” Attestation by Employers To Be Required on Certain I-129 Petitions
Beginning February 20, 2011 a new “deemed export” attestation will be required on Form I-129 nonimmigrant visa petitions for H-1B, H-1B1 (Chile/Singapore), L-1, and O-1A petitioners. This attestation will be required as part of the current version of the Form, which was issued on November 23, 2010. While the form is required for all filings made on or after December 23, 2010, USCIS has announced that it will give a two month grace period in which petitioners do not need to make the attestation.
The Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) require U.S. persons to seek and receive authorization from the U.S. government before releasing controlled technology or technical data to foreign persons in the United States. Under both the EAR and the ITAR, release of such information to a foreign national — even by an employer — is deemed to be an export to that person’s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, L-1, or O-1A beneficiaries. While these licensing requirements will affect only a small percentage of employer-petitioners because most types of technology are not controlled for export or release to foreign persons, a new certification attestation will be included on Form I-129. Most employers will simply certify that no license is required, but if an export license is required, then the employer must further certify that it will not release or otherwise provide access to controlled technology or technical data to the foreign national until it has received the required governmental authorization to do so.
For many years now, companies as well as universities have been required to comply with export control laws, but compliance is generally not managed by the same units that prepare I-129 petitions. Even though many activities at companies and universities can benefit from several exclusions to the export license requirement (e.g., the “basic research” exemption), to properly complete the new deemed export attestation on Form I-129, the petitioner would first have to inquire with the appropriate office at his or her company or university that handles export control issues. It would behoove these institutions to develop an institutional protocol for completing the form and assuring the signatory of the I-129 that their attestation is true and correct. Employers considering sponsoring foreign workers should familiarize themselves with these laws and discuss with immigration counsel their impact on future visa petitions.
The technology and technical data that are controlled for release to foreign persons are identified on the EAR’s Commerce Control List (CCL) (generally “dual use’ items) and the ITAR’s U.S. Munitions List (USML) (generally defense-related articles). The CCL is found at www.access.gpo.gov/bis/ear/ear_data.html#ccl; and the USML at www.pmddtc.state.gov/regulations_laws/itar.html. Additional information about applying for the appropriate licenses can be found at www.bis.doc.gov/deemedexports and www.pmddtc.state.gov/faqs/license_foreignpersons.html.
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