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Recently the U.S. Citizenship and Immigration Services (USCIS) published the final version of the new I-129 form, which will take effect December 21st. The form is used for most non-immigrant categories involving employment in the United States.

Employers have a grace period until December 22, 2010 to start using the new form. Before using the new form, employers should take the next few weeks to establish internal reviews and confirm compliance with the “deemed export” rules found in the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations (ITAR). For more information on this subject visit: U.S. Export Controls. (The "deemed export" rule does not apply to persons of foreign citizenship who are lawfully admitted for permanent residence, and does not apply to persons who are protected individuals under the Immigration and Naturalization Act (8 U.S.C. §1324b(a)(3)). )

Employers that employ foreign nationals that have access to technology or technical data are subject to possible validated licensing requirements under the “deemed export” rules even if they do not export services or goods to foreign countries. Whether a license is required will depend on the country of citizenship of the foreign national and the type of technology or technical data that they will have access to. Technology that is controlled by the EAR can be found in the Export Administration Regulations Database.

The new I-129 form asks employers to certify (for any H-1B, H-1B1 Chile/Singapore, L-1 and O-1A petitions) that they have reviewed the EAR and the ITAR and have determined that:

1. A license is not required from either U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
2. 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 by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The certification requirement on the form will require each employer to evaluate whether technology or technical data accessible by the foreign national is subject to an export license requirement under the either EAR or ITAR. U.S. employers have always been subject to the deemed export and re-export rules under the Department of Commerce’s Export Administration Regulations (EAR) and the State Department’s International Traffic in Arms Regulations (ITAR); however, the government has increased the visibility of this obligation by now requiring an employer certification up front regarding compliance with these rules.

For more information on deemed export rule, assistance in conducting a technology control review, or applying for a deemed export license, please contact George R. Tuttle, III at (415) 986-8780 or george.tuttle.iii@tuttlelaw.com.

George R. Tuttle, III is an attorney with the Law Offices of George R. Tuttle in San Francisco.

The information in this article is general in nature, and is not intended to constitute legal advice or to create an attorney-client relationship with respect to any event or occurrence, and may not be considered as such.

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