* Note that the American
Immigration Lawyers Association (AILA) issued a news flash this morning
indicating that USCIS may suspend the new certification set to go into effect
tomorrow (see AILA InfoNet Doc. No. 10122231 (posted Dec. 22, 2010)
(subscription required)) – we will update as we receive additional information,
but because of the time-sensitive nature of the new certification requirement,
we are issuing the following alert.
As if immigration law is not complicated enough, U.S. Citizenship and
Immigration Services (USCIS) now requires employers filing
Form I-129 (for H-1B,
L-1 as well as H-1B1 Chile/Singapore, and O-1A petitions) to understand and
certify compliance with the equally complicated export control laws. The new
Form I-129 Petition for a Nonimmigrant Worker (effective
Dec. 23, 2010) requires
employers to review relevant export laws, understand their applicability to the
company and the role of the visa applicant, and certify, under penalty of
perjury, that the employer has determined that no export license is required or,
if a license is required, that the worker will not have access to covered
technologies without first obtaining an export license.
Specifically, 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; 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 by the beneficiary until and unless the petitioner has
received the required license or other authorization to release it to the
Before checking the box and certifying compliance, employers 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.
Export classifications and licensing determinations can be complex. An
employer should discuss export control requirements with an in-house expert or
counsel with expertise in export control law before making this certification,
as civil and criminal penalties may be imposed on petitioners and their
representatives for misrepresentations made on Form I-129. Petitioners and their
representatives should make sure that the Part 6 certification is accurate in
Under the EAR (15 CFR Parts 770-774), technology may be subject to export
licensing and other restrictions, depending on the nature of the technology, the
destination, the end user and end use.
Under the ITAR (22 CFR Parts 120-130), technical data generally related to
defense articles may be subject to export licensing and other restrictions,
depending on the nature of the technology and the destination. Both the EAR and
ITAR treat the release of controlled technology or technical data to foreign
nationals in the United States as an export – even if provided to them by their
employer. See 15 CFR § 734.2(b)(2)(ii)); 22 CFR § 120.17(a)(3). Therefore, if an
export license would be required to export EAR-controlled technology or ITAR-controlled
technical data to a certain country, an export license would be required to
disclose that technology or technical data to a foreign national of that country
who is located in the United States. This “deemed export” rule makes it
critically important that employers who only do business within the United
States understand that they may be engaging in the “export” of technology if
they employ foreign nationals.
Although export control law has not changed, and the limitations on the
release of controlled technologies and technical data to foreign persons in the
United States have existed for many years, this is the first time that the USCIS
has become involved in the export license process by requiring employers to make
certifications regarding compliance with this process in their visa petitions.
As a result, companies that may not have considered export control issues will
now have to do so.
This new requirement should also serve as a reminder to all companies that
have technology or technical data subject to the EAR or ITAR to include a review
of their H-1B petitions and all I-9 Forms, as part of the regular export
compliance program to ensure that they are not running afoul of export controls
by providing information to their own employees within the United States.
Organizations must now develop a process to complete the required export
control analysis so they can certify compliance in their nonimmigrant worker
petitions. McGuireWoods LLP has lawyers with experience in immigration and
export control law who welcome the opportunity to help clients establish an
effective program to ensure compliance.