News and Update on Export Controls Certification Requirement in New U.S. Immigration Form I-129

The following guest post, by Brian Graham, an experienced immigration attorney with the law firm of Strasburger & Price LLP in Austin, Texas, discusses the new export control certification requirements contained in the U.S. Citizenship and Immigration Services' (USCIS) new I-129 form that must be used starting tomorrow.

Note that because of concerns and other inquiries raised by immigration attorneys and the business community about this new export certification requirement, USCIS announced today that petitioners will not be required to complete the export control certification contained in the form until February 20, 2011.

IMMIGRATION FORM I-129 UPDATED TO REFERENCE EXPORT CONTROLS

Effective December 23, 2010, a new I-129 Petition for Nonimmigrant Worker form will be required by all employers filing visa petitions with U.S. Citizenship and Immigration Services (USCIS) for foreign workers in the H-1B, H-1B1, L-1 and O-1A categories. These visa categories cover professionals and workers in specialty occupations, intra-company transfers of company executives and people with "extraordinary ability".

Among the key revisions to the I-129 form is a new Part 6 requiring a certification regarding the release of controlled technology or technical data to foreign person in the U.S., which is commonly referred to as the "deemed export" rule. Under the Department of Commerce's Export Administration Regulations (EAR), an export of technology or source code (except encryption source code) is "deemed" to take place when it is released to a foreign national within the United States. A similar concept is contained in the International Traffic in Arms Regulations (ITAR) with respect to ITAR-controlled technical data.

Part 6 of the new I-129 form requires the petitioning employer to attest that it has reviewed the EAR and ITAR and has determined that either: (1) A license is not required from either U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or, (2) a license is required from either the U.S. Department of Commerce's Bureau of Industry and Security (BIS) or the U.S. Department of State's Directorate of Defense Trade Controls (DDTC) 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 beneficiary.

Although the EAR and ITAR's export licensing requirements for controlled technical data are certainly not new, the inclusion of this certification requirement in the new I-129 form marks the first time USCIS has made these questions a part of the mainstream immigration process. It is widely believed that the employer's responses to Part 6 of the new I-129 form will be used for data collection and enforcement purposes. The new questions are not expected to change the process of obtaining an employment visa at U.S. consulates abroad, since the consular posts retain independent jurisdiction to investigate whether issuing a visa might trigger a deemed export violation.

Since the export certification is signed by the employer under penalty of perjury, it is imperative that employers filing I-129 petitions for H-1B, H-1B1, L-1, or O-1A workers undertake the review with the assistance of attorneys, consultants or in-house staff who have experience with the EAR and ITAR in order to determine whether an export license is required and, if so, to take the necessary precautions to avoid violating either the ITAR or the EAR prior to receipt of the license.

Editors Note: The "deemed export" rule appears in section 734.2(b)(2)(ii) of the Export Administration Regulations (EAR) and provides that:

"any release of technology or source code subject to the EAR to a foreign national . . . is deemed to be an export to the home country or countries of the foreign national. This deemed export rule does not apply to persons lawfully admitted for permanent residence in the United States and does not apply to persons who are protected individuals under the Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)). Note that the release of any item to any party with knowledge a violation is about to occur is prohibited by 736.2(b)(10) of the EAR."

A similar concept is contained in section 120.17(4) of the ITAR, which states that an export includes "disclosing (including oral or visual disclosure) or transferring technical data to a foreign person, whether in the United States or abroad." As a result, an export license or other authorization is required to be obtained from DDTC in order to permit the disclosure of ITAR controlled technical data to foreign persons in the U.S.