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.