Technology Exports: Uncertainty Around Form I-129 Persists

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Beginning on February 20, 2011, the U.S. Bureau of Citizenship and Immigration Services (“CIS”) assumed a role in the U.S. Government's increasing regulation of technology exports. The new role for CIS relates to the transfer of controlled technology or source code, sometimes referred to as “deemed exports," to non-U.S. nationals.

Questions exist regarding how information collected by CIS in its role may be used by the two principal U.S. agencies involved in administering and enforcing U.S. export controls, the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”) and the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”). In this uncertain environment, many employers are struggling to identify their vulnerabilities and develop efficient ways to comply with the new requirements.

The focus of uncertainty is the CIS Form I-129, the “Petition for a Nonimmigrant Worker.” Although in use for some time, the I-129 was amended in November 2010 to include a new Part 6 that requires that employers take special measures in hiring a non-U.S. worker under the H-1B (Specialty Occupations), H-1B1 (Chile/Singapore), L-1 (Intracompany Transferee), or O-1 (Extraordinary Ability or Achievement) categories. The employer must certify that the employer has (i) reviewed the Export Administration Regulations (“EAR”) and International Traffic in Arms Regulations (“ITAR”), and (ii) determined that any release of technology to the non-U.S. worker either does not require an export license or that the worker will be screened from that technology until appropriate authorization is obtained.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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