On November 23, 2010, the USCIS issued a new version of its Form I-129 that includes a new section – Part 6 – related to export controls. Entitled "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States," this new section requires employers to certify that they will not allow a sponsored FN access to controlled technology or technical data (including source code or other software) in the workplace unless the necessary export license is obtained. This reflects the U.S. Department of Commerce's "deemed export" rules that appear in the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR"), which prohibit giving certain FNs access to controlled technology or technical data unless an export license is secured.
Organizations that regularly deal with controlled technology generally have programs in place to control access. This new form, however, will affect many organizations that may deal with controlled technology inadvertently and may not realize the need for an export license. The new form took effect on February 20, 2011. The civil and criminal penalties for export control violations can be serious. For this reason, HR professionals who oversee their organization's immigration activities need to familiarize themselves with the deemed export rules so they can properly respond to Part 6 of the new Form I-129.