Please note that USCIS, with effect from February 20, 2011, requires employers filing Form I-129 for H, L, and O visa status on behalf of foreign nationals, to certify that they have:
(1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and
(2) have made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national.
If an export license is required to be obtained before such release, the employer must attest that the worker will NOT be exposed to covered technologies without first obtaining an export license covering the foreign worker. We wish to make sure that you do not make a misrepresentation on Form I-129 in this regard, which in itself would be a violation of federal law.
For more detailed information, please refer to the below write-up of the new requirement along with links and additional resources. Please note that this requirement will apply to all I-129 forms submitted on or after February 20, 2011.
A. PART 6 of the I-129 FORM:
Part 6 of the new version of Form I-129 states:
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;
- 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 controlled technology or technical data to the beneficiary until and unless petitioner has received the required license or other authorization to release it to the beneficiary.
The petitioner MUST check one of the above boxes on the form.
“Technology” and “technical data” that are controlled for release to foreign persons are identified on the Export Administration Regulations (EAR) Commerce Control List (CCL) and International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML). The Dept 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 EAR uses the term “technology” to refer to information for the development, production or use of “dual-use” products or software. “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. An export of controlled technology or technical data can occur when it is disclosed to or transferred to a foreign person, whether in the United States or abroad. Specifically, 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 commonly referred to as the “deemed export” rule.
While the ITAR does not use the phrase “deemed exports,” the ITAR contains a similar concept. 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. Therefore, if an export license is required to export EAR controlled technology or ITAR controlled technical data to a certain country, an export license or other authorization will be required to disclose or transfer such technology to a foreign national of that country who is located in the United States.
As noted above, U.S. law prohibits the “export” of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. U.S. law treats as an export the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not engage in any other exporting activities.
Technology or source code is considered “released” for export when it is made 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. Such exports of controlled technology or technical data must be authorized through an export license issued by
the appropriate government agency before release to the nonimmigrant foreign national. Therefore, to properly complete the new I-129 form, an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license may be required to be obtained from BIS or DDTC before releasing such technology or technical data to the foreign national.
In addition to the BIS and DDTC links above, the BIS web site has a series of six training modules called "Essentials of Export Controls." The training modules can also be downloaded in .pdf format.
E. PROFESSIONAL EXPERTS AND RESOURCES:
This is a very complex area of the law and we would recommend consulting an attorney with specialized knowledge in this field. If you are a consulting company, please talk to your client and find out if the client knows for a fact whether an export license is required or not for the project that your H-1B Consultant will be working on. If your client is not forthcoming with the information in regards to the export license, we recommend that you consult with an attorney who specializes in this field of law.
Please keep in mind that you have to ascertain the requirement for the export license on a project basis. For example, your H-1B Consultant is working with Client X on Project ABC and it is determined that no license is required. Thereafter, after some time, say one (1) year, the same H-1B Consultant working at Client X begins work on separate Project XYZ, then you must re-determine whether an export license is required for Project XYZ. We must then file an amended H-1B for the H-1B Consultant if it is determined that an export license is required for Project XYZ