Archive for February, 2011

Export Control Attestations on New Form I-129 in Effect as of February 20, 2011

Henry Chang | February 23, 2011 in United States Immigration | Comments (0)

I previously reported that the United States Citizenship and Immigration Services (“USCIS”) had temporarily suspended the new export control attestations that appear on the latest version of Form I-129 for a period of sixty days. This temporary suspension ended on February 20, 2011.

As of this date, employers who seek to petition H-1B, H-1B1, L-1 or O-1A (O-1A includes extraordinary ability in the sciences, arts, education, business, or athletics) nonimmigrants must answer Part 6 of Form I-129 “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” Part 6 of Form I-129 states 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:

  • 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
  • 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 to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The 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”). Technology that is required for the development, production or use of items on the EAR’s CCL may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use.

Section 734.2(b)(2)(ii) of the EAR (15 CFR §734.2(b)(2)(ii)) states that an export of technology to a foreign national in the United States is “deemed to be an export to the home country or countries of the foreign national”; this is known as the “deemed export” rule. Similarly, Section 120.17(a)(3) of the ITAR (22 CFR §120.17(a)(3)) states that an export occurs when technical data is disclosed (including oral or visual disclosure) or transferred to a foreign person in the United States.

In order to properly complete the new Form I-129, the petitioner employer is now required to assess the technology or technical data that will be released to the beneficiary in order to determine whether an export license may be required before releasing the technology or technical data to the foreign national. If an export license is required, the petitioner must check off the appropriate answer in Part 6 of Form I-129 and take steps to prevent access to the controlled technology or technical data by the beneficiary until the petitioner receives the required license or other authorization to release it.

These new export control attestations clearly create the potential for significant liability on the part of the employer. An employer who wishes to file a petition on behalf of an H-1B, H-1B1, L-1 or O-1A nonimmigrant on or after February 20, 2011, must first review EAR and ITAR to determine whether any of the technology or technical data that will be made available to the beneficiary is subject to these export controls.

Unfortunately, a determination of export restrictions can be complex. Where the employer is unsure whether EAR or ITAR will apply, it should seek a legal opinion from a lawyer who is experienced in interpreting export control regulations.

Canadian Government Reduces Immigration Targets for Parents and Grandparents

Henry Chang | February 17, 2011 in Canadian Immigration | Comments (0)

On February 13, 2011, Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism announced that, in 2010, Canada welcomed the highest number of legal immigrants in more than 50 years (280,636 permanent residents). A day later, New Democrat immigration critic Olivia Chow stated during a press conference that information obtained under an Access to Information Act request revealed that the federal government intends to further reduce the immigration targets for parents and grandparents from 15,300 in 2010 to 11,000.

According to Citizenship and Immigration Canada’s website, it is currently taking 41 months for the sponsor to be assessed in the case of parents and grandparents. Assessment of sponsors is the first stage in family sponsorships. After that, it can take between 12 and 45 months to complete the permanent residence process, depending on the country. With these proposed reductions, the wait time will become even longer.

In defending the Canadian Government’s decision, Minister Kenney stated that there are trade-offs and the Canadian Government is focused on the priorities of Canadians, which are economic growth and prosperity. He also said that Canada needs more newcomers working and paying taxes and contributing to our health care system and this is the focus of Canada’s immigration system. Kenney also stated that spouses and children of Canadian citizens and permanent residents continue to be the priority in the case of family sponsorships and that parents and grandparents can still come to Canada for visits while their cases are pending.

Critics have responded by saying that restricting the number of parents and grandparents who can come to Canada to join family members here may deter those same skilled immigrants that the Canadian Government is trying to attract. According to Liberal Foreign Affairs critic Bob Rae, many of the skilled immigrants that Canada wants to attract come because they believe they can sponsor their relatives; if they can’t do it, it is going to affect their choice of country. New Democrat immigration critic Olivia Chow also criticized the Conservative position, saying that parents and grandparents do not drain the system. Liberal MP Joe Volpe, a former immigration minister, also criticized the Conservative position. According to him, the Conservatives tell families to be responsible for their own child care when parents go to work, but this ignores the fact that new Canadians entering the workforce often rely on parents and grandparents for child care and help around the home.

It seems self-evident that many new immigrants rely on their extended families, in particular parents and grandparents. The current delay in processing family sponsorships for these family members likely discourages at least some immigrants from choosing Canada over other countries. The additional wait time that will inevitably result from the reduced immigration targets for these extended family members will only make it worse.

It remains to be seen what effect this will have on the foreign recruitment of skilled workers in future years.