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Reminder: Delayed "Deemed Export" Attestation Requirement Now in Effect

    Client Alerts
  • February 23, 2011

As of February 20, 2011, the new form I-129, Petition for a Nonimmigrant Worker, requires that employers submitting H-1B, H-1B1 Chile/Singapore, L-1 and O-1A petitions 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 has been required for all I-129s submitted after December 23, but the obligation to make this certification was delayed to allow businesses time to research their export licensing requirements.

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.

If your company answers "yes" to one or more of the following questions and employs foreign nationals, then it should consider conducting an assessment of its export compliance procedures:

  • Has your company ever applied for an export license for any reason?
  • Does your company manufacture or possess controlled items, information or services from any source?
  • Do any of your foreign national employees have access to any controlled items, information or services from any source?

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