USCIS Suspends Form I-129 Export Control Questions Temporarily

USCIS has just announced that petitioners will not be required to complete Part 6 of Form I-129 containing the export controls/ITAR questions until February 20, 2011.   In a response to stakeholder inquiries and concerns of proper implementation, USCIS has agreed to the delay in implementation in order to give petitioners time to establish the necessary internal processes to properly satisfy the attestation requirements.

About the Export Control/ITAR Requirement

As part of the November 23, 2010 Form I-129 revision, USCIS added a new Part 6 which 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.

What Are an Employer’s (Petitioner) Export Control Attestation Obligations?

U.S. law prohibits the “export” of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. An export is considered the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not engage in any other exporting
activities.  As a result, the export control obligations apply even if a company does absolutely no business abroad if it has employees who are foreign nationals.

Technology or source code is considered “released” for export when it is made available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.), when technology is exchanged orally, or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. Such exports of controlled technology or technical data must be authorized through an export license issued by the appropriate government agency before release to the nonimmigrant foreign national. 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 the Department of Commerce Bureau of Industry and Security or the Department of State Directorate of Defense Trade Controls before releasing such technology or technical data to the foreign national.

What is Controlled Technology and Technology 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 EAR uses the term “technology” to refer to information for the development, production or use of “dual-use” products or software. “Technology” that is required for the development, production or use of items on the EAR’s CCL may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use.

An export of controlled technology or technical data can occur when it is disclosed to or transferred to a foreign person, whether in the United States or abroad. 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.

As a result, 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 to disclose or transfer such technology to a foreign national of that country who is located in the United States.

Penalties for Misrepresentation Are Significant

The importance of providing correct attestations with respect to the export control requirements are underscored by the penalties for providing incorrect information.    Form I-129 requires the employer to certify under penalty of perjury under the laws of the United States that the petition and the evidence with it are true and correct to the best of the employer’s knowledge.   Penalties for perjury include fines and imprisonment up to five years.   Additionally,  certain violations under the H-1B regulations may result in civil and criminal penalties, including monetary penalties up to $35,000 per violation, payment of back wages to aggrieved workers, and bar the employer from filing employment-based immigrant petitions (“green card”) and H, L, O, or P nonimmigrant petitions for up to three years.  Additionally, criminal sanctions of $10,000 and imprisonment for up to five years, or both, may be imposed for the knowing submission of false statements to the Federal Government.

The Suspension of Export Control Attestations is Only Temporary

Please note that the export control attestations (or completing Part 6 of Form I-129) are suspended temporary for 60 days (until February 20, 2011) to allow employers to institute or modify the necessary internal processes to be able to provide accurate attestations with respect to the export control section.

Please do not hesitate to contact our office if we can be of any assistance in preparing Form I-129 petitions or if we can consult with respect to the applicability of the export control regulations to your organization.