The New Export Control Attestation Requirement on Form I-129

Q: Where is the export control question on the new Form I-129 and what does it say?-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 to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.
Q: What is controlled “technology” and “technical data”?-“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 the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML). The Department 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. 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.
Q: Where can I find the applicable regulations?-Information can be found at www.bis.doc.gov; www.bis.doc.gov/deemedexports ; www.pmddtc.state.gov ; http://www.pmddtc.state.gov/faqs/license_foreignpersons.html
Q: Why is this issue relevant to a visa petition on behalf of a nonimmigrant foreign national?-U.S. law prohibits the “export” of controlled technology and technical data to certain foreign nationals located within the United States without a license. 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.
Q: To what visa classifications does the new attestation apply?-H-1B, H-1B1, L-1, and O-1A.
For more information please feel free to contact us at:
NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
VISASERVE PLAZA
487 Goffle Road
Ridgewood, New Jersey 07450
Phone (201) 670-0006 (x100)
Facsimile (201) 670-0009