On November 23rd, USCIS published a revised version of Form I-129, Petition for Nonimmigrant Worker. The new form requires petitioners to take additional steps to ensure that federal export compliance is properly evaluated and that petitioner’s attestations are accurate.
What is export? Could be export to a foreign country. However, export of technology to foreign nationals may also deemed export which is prohibited in certain cases. The new Form I-129 includes a new Part 6, called “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States” which requires petitioners that seek to employ foreign nationals in H, L, and O nonimmigrant visa status to certify that the company (i) has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”), and (ii) 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.
The new forms includes the following language in Part 6 that requires the petitioner to affirm that, with respect to technology or technical data that the petitioner will release or otherwise provide access to the beneficiary:
(i) A license is not required from the Department of Commerce or the Department of State to release such technology or technical data to the foreign person; OR
(ii) A license is required from the Department of Commerce or the Department of State to release such technology or technological data to the beneficiary and the petitioner will prevent access to controlled technology or technical data by the beneficiary unless and until the petitioner has received the required license or other authorization to release it to the beneficiary.
If n export license is required before making such a release, the employer must attest that the foreign worker will not be exposed to any covered “technologies” without first obtaining the requisite license to cover the foreign worker. It is very important that petitioners not make a misrepresentation on Form I-129 in this regard, which in itself could be problematic (and violating Federal law).
While the new form is effective now, petitioners may continue using the former version of the form (which does not include the reference to export license requirements) until December 23, 2010.
More due diligence will be now required of petitioners applying for H-1B workers.
H-1B FEDERAL EXPORT REQUIREMENT CHANGES
