The Citizenship and Immigration Service (CIS) implemented a
revised Form I-129, (Petition For A Non-Immigrant Worker), which
became effective on Dec. 23, 2010. The revised Form affected users
of H-1B, H-1B1 (Chile/Singapore), L-1 and O-1A petitions only. What
was most notable about the new Form I-129, was that U.S. employers
were required to complete a new Part 6 of the Form I-129,
"Certification Regarding the Release of Controlled Technology
or Technical Data to Foreign Persons in the United States."
Due to a number of inquiries regarding the Part 6 certification
requirements, CIS delay this requirement to Feb. 20, 2011. CIS
recently issued a reminder that Part 6 of the Form I-129 must be
completed for all Petitions postmarked on or after Feb. 20,
2011.
Part 6 of the new Form I-129 includes a section specifically
related to U.S. export controls and requires the petitioning
employer to attest to the following:
"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 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 either U.S. Department of Commerce 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 by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary."
Although U.S. employers have always been liable for export
control violations, they now face increased exposure from the
required certification in this form, which is specifically drafted
to decrease violations of the "Deemed Export" Rule.
Under the Deemed Export Rule, there can be an export without
anything leaving the room:
"An export of technology or source code (except encryption
source code) is "deemed" to take place when it is
released to a foreign national within the United States. See
§734.2(b)(2)(ii) of the Export Administration Regulations
(EAR). For brevity, these questions and answers refer only to
"technology" but apply equally to source
code."
Technology is "released" for export when it is 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. See §734.2(b)(3) of the EAR.
Section 120.17 of the ITAR contains a similar provision on the
release of technology.
A deemed export can occur through a variety of ways. For example, a
foreign national employee can access restricted technology through
their employer's unsecured company intranet; by reviewing
unsecured drawings and engineering notes; or through observation
while working in a manufacturing plant. Restricted technology can
include many things that appear benign such as software containing
encryption functionality, aircraft parts, imaging equipment,
fermentation and other chemical processes used for non-military
applications, which could be weaponized.
It is imperative that all employers who employ foreign nationals on
work visas in the U.S. review their internal policies and
procedures to ensure access to restricted technologies is secured.
If a company does not have appropriate written policies and
procedures in place, it should take immediate action to develop and
implement written policies and procedures to secure access to
restricted technologies by unauthorized foreign national employees.
If a company is unsure if the Deemed Export Rule applies to them,
it must immediately conduct a review of it products and technology
to determine if they are controlled by the EAR or the ITAR.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.