Mark A Ivener, A Law Corporation

Immigration Alert: Changes to I-129 Application requires Employer Attestations about Export Controls & Technology

Starting December 23nd, the U.S. Citizenship and Immigration Service (CIS) will require employers who are sponsoring foreign national workers for certain work visas to certify that they have made an export licensing determination regarding each employee sponsored. More specifically, employers will have to certify that they have evaluated the applicable regulations and have determined whether the employee will require an export license in order to perform the job.

The certification requirement is found in the new version of the Form I-129 Petition for Nonimmigrant Worker, the application form used to sponsor most types of work visa status for foreign national workers in the United States. The new form will be required for all filings after December 22, 2010. The certification is quite detailed.

The United States prohibits the export of certain technology and technical data without a license to do so. U.S. law treats as an export the exposure of such technology or technical data to a foreign national working in the U.S., even if the company does not otherwise export any materials, technology, or data. This is referred to as “deemed exports.”

USCIS now requires employers filing Form I-129 for H, L, and O visa status of foreign nationals (1) to certify that they have read the relevant Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and (2) to certify whether or not an export control license is required to expose the foreign national to any technologies or technical data associated with the workplace. If a license is required, the employer must attest that the worker will not be exposed to covered technologies without a 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 would be a federal crime in itself.

The International Traffic in Arms Regulations (ITAR) can be found at this site, a page from which other links can be found for the State Department’s Directorate of Defense Trade Controls, which oversees ITAR matters.

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.