Effective February 20, 2011, U.S. employers will be required to use a new version of the Form I-129, “Petition for a Nonimmigrant Worker,” which is the form that employers complete when hiring employees under H-1B or L-1 visas, among others, or when seeking extensions for employees who already have those visas.

The new I-129 form contains a certification relating to the release of export controlled information to foreign employees. We anticipate that the new I-129 will present a challenge to Human Resources managers, who are generally responsible for completing these forms, since they may be unfamiliar with export control requirements. The certification requires the employer to identify whether or not an export license is required to release export controlled information to the foreign employee and, if so, to certify that access to such information will not be provided until the requisite license is obtained.

As a practical matter, a certification requires that employers:

1) understand the export controls that apply to their equipment and technology;

2) determine a foreign national employee’s level of access to export controlled information; and

3) implement a sufficiently robust compliance program to prevent export violations due to unauthorized disclosures of export controlled information.

After February 20, companies that disclose export controlled information to their foreign employees without obtaining the proper export authorizations face potential liability for a false I-129 certification as well as liability for export violations. As a result, companies will need to ensure that they have the appropriate export compliance infrastructure in place to respond to this new requirement.

The relevant change to the Form I-129 is located in Part 6, "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States." This part requires that the employer complete the following certification for all H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners.

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:

1) A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or,

2) 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.

As mentioned above, completion of the certification assumes that the employer will be knowledgeable about the export control requirements relating to its equipment and technology and will be able to identify the extent of access to export controlled information by the foreign employee and prevent unauthorized disclosures (through facility or network access or other means). Since employment forms, such as the I-129, typically are completed by Human Resources personnel, it will be important for companies to ensure that such personnel have the appropriate level of information to be able to make an accurate certification.

Although all companies will be required to use the new I-129 after February 20, companies that produce products and technologies that are more likely to trigger export licensing requirements should be especially sensitive to the new requirement. At a minimum, this would include (but not be limited to) items with military or intelligence applications or other products or technology that raise national security or foreign policy concerns. Additionally, under U.S. export laws, a release of controlled technology or technical data (in any form) to a foreign person located in the U.S. is considered to be a “deemed export” back to the foreign person’s home country.

As a result, companies who hire employees from countries viewed as more hostile to U.S. national security and foreign policy interests, including embargoed destinations (such as Cuba and Iran, among others) or other sensitive destinations (such as China, India, etc.), also need to carefully consider the new certification requirement. http://www.greencardapply.com/news/news11/news11_0228.htm


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