On November 23, 2010, U.S. Citizenship and Immigration Services ("USCIS") issued a revised version of Form I-129, Petition for Nonimmigrant Worker, 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 the sponsored foreign national ("FN") access to controlled technology or technical data (including source code and other software) in the workplace unless the necessary export license is obtained. Use of the new Form became mandatory on December 23, 2010, but, due to inquiries received by USCIS, employers will not be required to complete Part 6 until at least February 20, 2011.
This new section of the Form I-129 requires prospective employers of nonimmigrants to address export control issues that traditionally have been the focus of the nonimmigrant visa process performed by the U.S. Department of State ("DOS") at its embassies or consulates abroad. Part 6 reflects the Commerce Department's "deemed export" rules that already are in place. These deemed export rules are contained 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.
To complete Part 6, sponsoring employers must first familiarize themselves with the EAR and ITAR to determine if they use controlled technologies. If they do, then the sponsoring employers must assess if the sponsored FN will have access to that technology and, if so, whether an export license is required. If such a license is necessary, a sponsoring employer must certify in Part 6 that it will secure the necessary license before allowing the sponsored FN access to the technology.
Organizations that regularly deal with controlled technology generally have programs in place to control access. There are many organizations, however, that may use this technology inadvertently and not realize that an export license may be required. The consequences of noncompliance are serious. Violators are subject to civil fines of up to $500,000 per violation and criminal prosecution that can result in criminal penalties of up to $1 million and 10 years in prison. As a result, HR professionals who oversee their employer'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 petition.