Form I-129 Revision
As of February 20, 2011, U. S. Citizen and Immigration Services (USCIS) requires employees filing Form I-129, a nonimmigrant visa petition used for H-1B, L-1, and O1A workers, to certify their company's compliance with the "deemed export" regulations enumerated by the U.S. Department of Commerce and the U.S. Department of State. The revised form includes Part 6, "Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States." "Deemed export" rules interpret the release of controlled technology to a foreign national within the United States as equivalent to the export of technical data or information to that individual's country. Employers, therefore, must certify whether or not the technology to which foreign national beneficiaries have access has sensitive military, trade, or national security applications, and if so, follow the appropriate licensing steps. While companies that hire foreign nationals have always been subject to export control laws, the updated Form I-129 obliges them to evaluate compliance procedures, and apply them earlier in the hiring process.
Employees Subject to the "Deemed Export" Regulations
U.S. citizen employees are not subject to the "deemed export" regulations. The provisions apply to all foreign nationals, be they scholars, students, tourists, technicians, diplomats, salespeople, etc., with the exception of (1) permanent residents, or green card holders, and (2) "protected persons," or political refugees and asylees. For individuals who hold dual citizenship in two foreign countries, or who have citizenship in one foreign country and permanent residency in another, the status most recently obtained determines the restrictions applicable. It is important to note that the requirement of an export control license may be prompted not only by sensitive technology, but also by its export destination as determined by the residency status of the participating employee. Currently, embargoed nations and those accused of harboring terrorists, such as Cuba, Iran, North Korea, Sudan, and Syria, carry the highest level of restriction.
Release of Controlled Technology or Technical Data
The U.S. Department of Commerce's Export Administration Regulations (EAR) manage the release of dual-use materials catalogued on the Commerce Control List, which are applicable for both commercial and security purposes. The U.S. Department of State's International Traffic in Arms Regulations (ITAR) govern technical, military-related data enumerated on the U.S. Munitions List. Both EAR and ITAR broadly define what constitutes the release of controlled technology to include oral, visual, and use-based disclosure. Exempted from export controls are those technologies readily available to the public, or developed via fundamental research. While only a small percentage of the companies filing Form I-129 for foreign national beneficiaries handle technology controlled by EAR or ITAR, all are required to sign Part 6 confirming compliance with the regulations. Employers should be diligent in scrutinizing their technologies with respect to the control lists, as careless assumptions carry the risk of false I-129 certification.
The Consequences of Noncompliance
While it is not yet clear how USCIS intends to verify petitioner accuracy in completing the attestation, the I-129 revision emerged as one of many measures undertaken by the Obama administration to overhaul the export control system, and might thus be accompanied by enhanced enforcement. On November 9, 2010, the president issued an executive order to establish an Export Enforcement Coordination Center within DHS, tasked with facilitating information-sharing among the federal agencies that investigate and penalize violators of U.S. export controls. Additionally, USCIS could ensure compliance through audits and worksite investigations. Whatever the enforcement efforts implemented, Part 6 does entail a confirmation of compliance with "deemed export" rules under penalty of perjury, and the consequences of erroneous certification are significant. Penalties include civil fines of up to $500,000, criminal fines of up to $1 million, and up to 10 years in prison, restricted export privileges, and suspension of government contracts.
Best Practices for I-129 Compliance
The revisions to Form I-129 place significant responsibility on the signatories of the petition — usually human resources personnel — and will impact companies to varying degrees, depending upon the field, size, departmental cooperation, and review procedures already in place. Export license determinations are not straightforward; they require an in-depth understanding of how technology is used, how accessible it is to foreign national employees, whether it is controlled, and for which countries. While large companies, especially those that regularly handle sensitive technology, might already possess an export control office devoted to the classification and management of controlled information, many smaller institutions will not be equipped to handle the review process required. Suggestions include appraisal of the compliance procedures already in place; arrangement of coordination between the hiring department, export control administrators, and human resources personnel; and consultation with export counsel or establishment of an export control office. Documenting the review process may additionally be beneficial in evidencing the steps taken to ensure accurate attestation.
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