"Deemed Export" Certification Required on Foreign Worker Petitions on Feb 20
U.S. Citizenship and Immigration Services has updated Form I-129, “Petition for a Nonimmigrant Worker,” which allows employers to petition for an alien to come to the U.S. temporarily to perform services or labor, or to receive training, under certain visa categories. Among other things, the revised form contains a new employer certification regarding the release of controlled technology.
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Employer Must Certify if License Needed for Foreign Worker to Access Technology/Data
Starting February 20, 2011, employers (petitioners) will need to complete Part 6 of the form, which is entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the U.S.”
This part requires that with respect to thetechnology or technical data that the employerwill release or otherwise provide access to the beneficiary, the employer certifies it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that either:
- A license is not required from either the Commerce Department or the State Department to release such technology or technical data to the foreign person; or
- A license is required from Commerce and/or State to release such, but the petitioner will prevent access to controlled technology or technological data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.
Release of Controlled Tech/Data Without License is Deemed Export
CIS explains that the EAR and ITAR require U.S. persons to seek and receive authorization from the U.S. government before releasing to foreign persons in the U.S. controlled technology or technical data. Under both the EAR and the ITAR, release of controlled technology or technical data to foreign persons in the U.S. -- even by an employer -- is deemed to be an export to the person’s country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, L-1 or O-1A beneficiaries.
CIS Says Few to be Affected by New Certification Requirement
According to CIS, the licensing requirements described above will only affect a small percentage of petitioners because most types of technology are not controlled for export or release to foreign persons. The technology and technical data that are controlled for release to foreign persons are identified in the EAR’s Commerce Control List (CCL) and the ITAR’s U.S. Munitions List (USML).