On November 23, USCIS published a revised version of Form I-129, Petition for Nonimmigrant Worker. The new form requires petitioners to take some additional steps to ensure that export compliance is properly evaluated and that their attestations are accurate.
With regard to export compliance, the new Form I-129 includes a new Part 6, entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States” which requires petitioners that seek to employ foreign nationals in H, L, and O nonimmigrant visa status to certify that the company (i) has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”), and (ii) made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national.
More specifically, the revised form contains explicit language in Section 6 that requires the petitioner to affirm that, with respect to technology or technical data that the petitioner will release or otherwise provide access to the beneficiary:
(i) A license is not required from the Department of Commerce or the Department of State to release such technology or technical data to the foreign person; OR
(ii) A license is required from the Department of Commerce or the Department of State to release such technology or technological data to the beneficiary and the petitioner will prevent access to 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.
Such affirmation necessarily requires some due diligence in reviewing the beneficiary’s job to make sure it does not require a license (which the employer would otherwise have to obtain) before the beneficiary can do the job for which he/she is being hired.
If, in fact, an export license is required before making such a release, the employer must attest that the foreign worker will not be exposed to any covered “technologies” without first obtaining the requisite license to cover the foreign worker. It is very important that you do not make a misrepresentation on Form I-129 in this regard, which in itself could be construed as a violation of federal law. Please read the new Form I-129 and its instructions before signing the Form I-129 under penalty of perjury.
While the new form is effective now, petitioners may continue using the former version of the form (which does not include any reference to export license requirements) until December 23, 2010.
Those responsible for completing the Form I-129 should consult with export counsel to determine whether an export license is required, and to implement appropriate technology safeguards.