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.