The new export control attestation required of employers sponsoring foreign nationals for employment in H-1B, H-1B1, L-1 and O-1 visa statuses is scheduled to take effect on February 20. Originally scheduled to take effect on December 23, U.S. Citizenship and Immigration Services (USCIS) announced a last-minute delay of the new export control attestations on Form I-129 on December 22. The attestation requires employers seeking to sponsor foreign nationals for employment in H-1B, H-1B1, L-1 and O-1 visa categories to certify compliance with “deemed export” laws, the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). These regulations provide that certain technology and technical data are “deemed” to be exported if the same are released or provided to a foreign national in the United States. USCIS has instructed employers that they may leave Part 6 of the I-129 blank on any petition filed before February 20.

There has been significant confusion and criticism regarding the new requirement, with some questioning how human resource or other employer representatives who commonly execute Form I-129 could be in a position to assess a company’s compliance with such a narrow, technical and complex area of law. Nonetheless, prudent employers have no choice but to seek compliance.