The New Export Control Attestation Requirement on the New Form I-129

Posted On: December 23, 2010

Please note that USCIS now requires employers filing Form I-129 for H, L, and O visa status on behalf of foreign nationals to certify that they have (1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and (2) have 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. If an export license is required to be obtained before such release, the employer must attest that the worker will not be exposed to covered technologies without first obtaining an export license covering the foreign worker.

UPDATED INFORMATION: December 22, 2010, According to USCIS, petitioners will not be required to complete Part 6 of Form I-129 containing the export controls/ITAR questions until February 20, 2011. USCIS received a number of inquiries from stakeholders, including AILA, requesting a delay in order to give petitioners time to establish the necessary internal processes to properly satisfy the attestation requirements.

We wish to make sure that you do not make a misrepresentation on Form I-129 in this regard, which in itself would be a violation of federal law. Read all of the forms and know that you are signing under penalty of perjury.

Part 6 of the new version of Form I-129 states:

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 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

􀀀 A license is required from the U.S. Department of Commerce and/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 to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The petitioner must check one of the above boxes on the form.

“Technology” and “technical data” that are controlled for release to foreign persons are identified on the Export Administration Regulations(EAR) Commerce Control List (CCL) and the International Traffic in Arms Regulations(ITAR) U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers the EAR. The Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR.

Information about the EAR and how to apply for a deemed export license from BIS can be found at www.bis.doc.gov. Information about EAR’s requirements pertaining to the release of controlled technology to foreign persons is at www.bis.doc.gov/deemedexports. Information about the ITAR and how to apply for an export license from DDTC can be found at www.pmddtc.state.gov. Information about the ITAR’s requirements pertaining to the release of controlled technical data can be found at http://www.pmddtc.state.gov/faqs/license_foreignpersons.html.

If you are unsure as to whether your company requires an export license or would like more information, please contact MVP Law Group or the BIS directly.