USCIS will soon release a new version of Form I-129 that contains long-awaited changes, including a query regarding whether the beneficiary requires an Export Control or International Traffic in Arms Regulations (ITAR) license or clearance. The revised form will roll out on November 23, 2010, and 30 days thereafter become mandatory for all nonimmigrant visa petitions filed with USCIS. (Blanket L applications use a different form, the Form I-129S.  Therefore, they should not be impacted for the immediate future.)  Form I-129 is used for most nonimmigrant visa employment petitions (H-1B, H-1B1, L-1, O-1, E-2, E-3, and TN extensions) for foreign workers to come to the US.  Among other minor changes, the new form requires the sponsoring employer to attest that it understands and complies with the federal export control regulations and ITAR (International Traffic in Arms Regulations). 

Please note that the new Form I-129 adds no new burden to petitioners.  Nonimmigrant visa petitioners have always been required to comply with the Export Control/ITAR regime. Specifically, US employers have always been required to make sure that foreign workers are not exposed to any sensitive technologies under the export administration regulations (EAR) or ITAR, due to the so-called “deemed export” rules.  The “Visa Mantis” screening applied by US consulates during the security clearance process has always included an assessment as to whether export control licensure might be necessary.  For more information on the “deemed export” rules, please review the following Bureau of Industry and Security website: http://www.bis.doc.gov/deemedexports/deemedexportsfaqs.html

The only new change, then, is that employers must now attest that the necessary review for export control compliance was completed with each and every Form I-129 they file. Therefore, the added burden is one of “communication” only.  Going forward, Petitioners must check a box certifying whether or not the foreign national employee is subject to an export/ITAR license requirement. If the individual *is* subject to the license, then the Petitioner will confirm that it will prevent access to the controlled technology/date until the required license or authorization to release it is granted to the sponsored foreign national.

We urge clients to discuss this new requirement internally with their Export/ITAR compliance department, and develop a procedure for notifying the mobility or HR department regarding any foreign employees for whom an export license is required. Petitioners may want to consider modifying the hiring process so that such information can be captured at the initiation stage.  Suggested language for all future hiring worksheets might run as follows:

With respect to the technology or technical data Company will release or otherwise provide access to the beneficiary, Company must certify that it has reviewed the Export Administration (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

(1) a license is not required from either US Department of Commerce or US Department of State to release such technology or technical data to the foreign person; or

(2) A license is required for such release to the beneficiary and that until such license is issued, Company will prevent access to the controlled technology or technical data by the beneficiary.

Company’s Export Control Department as determined that a license is required:

Please respond YES or NO.

However companies decide how to handle this issue, their export control compliance group should be advised of the fact that some communication must be made to those responsible for processing immigration paperwork.  If you have any questions regarding the impact of this form change, please contact Jackson & Hertogs.

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