On November 23, 2010, U.S. Citizenship and Immigration Services (“USCIS”) released a revised Form I-129 petition for a nonimmigrant worker. This is a document that employers file with USCIS for various types of visa petitions. Revisions to the form are not unusual and rarely involve substantive changes.

In this instance, however, the revisions include additions of questions related to the transfer of “Controlled Technology or Technical Data” to H-1B, L-1, and O-1A nonimmigrant workers. Revealing certain technology or data to foreign workers employed in the U.S. could require a license from the federal government.

The new questions require employers to certify that:

  •  they have reviewed the pertinent regulations, and
  •  they have determined whether a license is required. If a license is required, the employer must state that it will obtain a license or other authorization before releasing controlled data or technology.

The only guidance on this new requirement appears in the instructions to the revised form. Those instructions provide links to government websites where lists of controlled technology and data can be found, along with information on how to obtain a license.

USCIS will not accept older versions of the form after December 22, 2010. According to the form instructions, only a small percentage of employers are likely to be subject to the license requirements. Nonetheless, all employers should be ready to answer the new questions accurately, and, if it proves necessary, apply for the license required to release pertinent technology or data to foreign nationals for whom they will be filing petitions. There can be significant penalties for transferring controlled technology without a license.