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New "Deemed Export" Attestation Required for Employers of Certain Non-Immigrant Employees

    Client Alerts
  • December 16, 2010

U.S. Citizenship and Immigration Services ("CIS") has issued a new form I-129, Petition for a Nonimmigrant Worker, which reflects several critical changes addressing issues that CIS has raised this past year. One of the most notable changes is that employers submitting H-1B, H-1B1 Chile/Singapore, L-1 and O-1A petitions must now certify that they have reviewed the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR") and determined whether a license is required to release technology or technical data to the foreign beneficiary for whom the case is being filed. The new form I-129 must be submitted for all petitions filed on or after December 23, 2010.

The EAR controls the export of commercial items and dual-use items (i.e. items that have both a commercial and military application) and related technologies or data, while ITAR controls the export of items or services that have a direct military application and are listed on the United States Munitions List ("USML").  Under both EAR and ITAR, providing foreign persons inside the United States access to controlled technology or technical data is a "deemed export" of those technologies or technical data.

Consequently, petitioners employing foreign persons in the United States and dealing in controlled items, technologies or data must determine whether an export license is required where the foreign person employees have access to such information. Making this determination can be challenging and time-consuming because it requires a review of the employer's products and technologies and an evaluation of their accessibility by each particular foreign person. Under the EAR, whether a license is required will depend on the foreign person's country of origin and the type of EAR-controlled technology or technical data at issue. ITAR-controlled technology, on the other hand, requires a license prior to allowing such access to any foreign person, regardless of his or her nationality. Petitioning employers for any of the covered visa categories should therefore immediately review their current export control policies to confirm compliance with these laws.

It is worth noting that these export compliance laws are not new; they have been in existence for a long time. Most companies affected by these laws already have in place an export compliance program that properly accounts for controlled items, services or technologies, as applicable. These compliance programs should also include procedures for "deemed exports" and foreign person employees. That said, the government's heightened scrutiny in this area as evidenced by this new export control attestation on the Form I-129 provides powerful incentive for companies to review their compliance measures.

Please contact our Immigration Team with any questions that you may have regarding this new form and our Export Controls Team with questions about export compliance.

Immigration Team:
Elizabeth Gibbes   864.253.6128
Todd Rubin            919.835.4598

Export Controls Team:
Eric Cottrell           704.335.9850
Al Guarnieri            704.335.9888