If your organization files petitions for H, L, or O visas, a new certification will be required on the petition Form I-129 beginning February 20, 2011. Part 6 of the new Form I-129 now includes a certification regarding the release of controlled technology or technical data to foreign persons in the United States. Specifically, Part 6 obligates an employer to certify that they have reviewed the Export Administration Regulations ("EAR")1 and the International Traffic in Arms Regulations ("ITAR")2 and determined that either: (1) a license is not required; or (2) a license is required and the employer will prevent the foreign national's access to controlled technology until and unless they receive the requisite license.
In making the certification, the organization - whether a company or academic institution - is making a representation to the U.S. government that it has reviewed the EAR and the ITAR and, as a result of the review, determined that an export license is/is not required to release workplace technologies to the foreign national.
As export control practitioners know, this certification is related to the "deemed export" rule, which "deems" the transfer of technology to a foreign national as an export to the individual's home country. This remains true even when the information is transferred to the individual in the United States. Although this rule applies to all foreign nationals in any visa status, the new Form I-129 limits the export controls certification to those petitions for H-1B and H-1B1 (specialty occupation minimally requiring a bachelor's degree), L-1 (intra-company transferee) or O-1A (extraordinary ability in science, arts, education, business or athletics) nonimmigrant workers.
This article provides a brief history and overview of the Form I-129 export control language and the deemed export rule. We conclude the article with a detailed checklist for a deemed export compliance program to help your organization address the new visa petition export control certification.
Form I-129 Petition For Nonimmigrant Worker
On November 23, 2010, the U.S. Citizenship and Immigration Services ("USCIS") released a new version of the Form I-129 Petition for Nonimmigrant Worker. The Form I-129 is extensively used by employers to petition for a foreign national to come to the United States to work or to receive training under the most common types of visas.3 The November version included the Part 6 export control certification and was set to become mandatory effective December 23, 2010. While other aspects of the Form I-129 went into effect in December (2010), compliance with Part 6 was delayed until February 20, 2011.
A Brief History
In 2002, the Government Accountability Office ("GAO") released a report calling for improvements to the Department of Commerce's controls over transfers of technology to foreign nationals. Specifically, the report identified: (i) a significant gap between the number of nonimmigrant visa applications and deemed export license applications; and (ii) a lack of information sharing between the various U.S. government agencies involved in processing these applications.
In an attempt to resolve these gaps, the GAO recommended that the DOC "use all existing U.S. immigration data to identify foreign nationals who could be subject to deemed export licensing requirements." To carry out this recommendation, in 2005 U.S. Citizenship and Immigration Services ("CIS") proposed adding U.S. export-controls-related questions to the Form I-129, although such proposal was never made public. For a number of reasons, the recommendation was not adopted in the 2005 version of the I-129. 4
The New Certification
After missing the 2005 deadline, discussion regarding the proposed export control language did not resurface until February 2010. The February 2010 proposed language, Part 7, Deemed Export Acknowledgment, would require an employer to indicate (i) no deemed export license required5 or (ii) deemed export license required - provide license number.6 Under this proposed language, if a foreign national requires a deemed export license to work with controlled technology, an approved license would be a prerequisite for filing that individual's petition for an H, L, or O petition.
Fragomen, along with several companies and industry groups, provided comments to USCIS, advocating for removal of the proposed Deemed Export Acknowledgement.7 USCIS reviewed the comments received during the public comment period and, on November 23, 2010, issued a revised Form I-129 with a modified export controls certification. The modified language removed the requirement to include a deemed export license number.
As noted in the introduction, the new Form I-129 requires employers to answer questions certifying that they are in compliance with U.S. export control regulations governing the release of technology and know-how to the subject foreign nationals. At this time, the certification is not required for foreign nationals coming to the United States under what's known as a "Blanket L," though Form I-129S used for Blanket L's may be revised in the near future to include the export control certification.
The "Deemed Export" Rule
When most people think of "exports," they think of tangible shipments of goods like computer hardware or semiconductor chips. But, under U.S. export controls, the transfer of knowledge, information, technology and other intangibles is also considered an export - even without crossing a U.S. border.
When technical information such as formulas, instructions, drawings, source code and design know-how are released to a foreign national, U.S. export control regulations considers this to be an export to the foreign national's home country - commonly referred to as a "deemed export."8 The deemed export rules apply to all foreign nationals except U.S. Lawful Permanent Residents, refugees, asylees and certain temporary residents granted amnesty (U.S. citizens or nationals are not covered by the rules).
The term "deemed export" stems from the concept that the transfer of technology or technical data to a foreign national in the United States is "deemed" to be an export to the foreign national's home country. The rationale behind this rule is that a transfer of technology or information to a foreign national is permanent and the individual may apply the newly acquired knowledge upon return to his/her home country.
Deemed Exports In Practice
Let's take a closer look at how the rule works. If your organization hires a foreign national, it will likely need to provide the individual with certain technology, technical data, tools and other workplace information to perform his/her job. During the course of employment, the individual may receive technical training or attend technical meetings, design reviews, feasibility studies or presentations. In some cases, the foreign national may be responsible for maintenance of sophisticated manufacturing equipment, manufacturing flows, design databases or other information systems. In certain service industries, such as consulting, legal and insurance, the foreign national may receive technology or technical data from third parties in support of deals, transactions or due diligence efforts.
Through this new Form I-129 export control certification, the U.S. government is asking whether these workplace activities involve the transfer of controlled technology to a foreign national and whether a license is required.
Making A License Determination
Whether an export license is required will depend on two (2) factors: (i) the nature of the workplace technology that will be transferred to the foreign national; and (ii) the foreign national's home country for export control purposes.
Classification of Workplace Technologies: The new export control certification requires a company to certify that it has reviewed the EAR and the ITAR and, as a result of the review, determined that an export license is/is not required. Therefore, the export classification of technology, technical data, and source code proposed for transfer to a foreign national must be determined.
One important item to keep in mind is that USCIS regularly conducts audits and may request proof of such review during an on-site audit.9 Therefore, it is imperative that the organization not only review the EAR and ITAR, but document the review process and results.
Home Country: The EAR and ITAR define this factor differently. Under the EAR, the Department of Commerce defines "home country" as a foreign national's last-in-time country of citizenship or permanent residency. The individual's home country, in conjunction with the export classification of the workplace technologies, is used to determine whether a license is required. The level of control for a given home country is based on U.S. foreign policy and national security concerns and, as a result, not all countries are subject to the same restrictions.
On the other hand, under the ITAR, the Department of State considers all countries of birth and country(ies) of citizenship in determining whether to approve an ITAR license for transfer of ITAR-controlled technical data to a foreign national.
Deemed Export Compliance Program
The new Form I-129 certification re-emphasizes the importance of a well-documented Deemed Export Compliance Program. A typical Deemed Export Compliance Program consists of five (5) key elements:
1. Technology Assessment program to identify controlled workplace technologies;
2. Foreign National program to identify foreign nationals that may require an export license;
3. Physical and IT Security program to secure controlled technologies;
4. Training and education program; and
5. Self-review and Audit program.
These elements work together to help identify license requirements, prevent unauthorized access to controlled technologies and educate employees on relevant issues. One benefit, of course, is to place organizations into a position to efficiently and accurately answer the Form I-129 export control certification.
It is a best practice for these elements to be documented in a procedure termed a "Technology Control Plan" which must also, of course, balance employment discrimination concerns.
Deemed export requirements can be complex for even the most experienced export control practitioner, especially given that the regulations, technologies and foreign national employees continually change within the workplace. The first step, however, is to determine whether the organization works with controlled technologies and, if so, which foreign national home countries require an export license. From this initial assessment, organizations may then determine not only how to respond to the new I-129 export control certification, but how robust its deemed export compliance program needs to be.
1 The Export Administration Regulation ("EAR", 15 C.F.R. 730-774) EAR covers "Dual Use" technology that has both commercial and potential military application. These regulations are administered by the U.S. Department of Commerce, Bureau of Industry and Security ("BIS").
2 The International Traffic in Arms Regulations ("ITAR", 22 CFR 120-130) covers items on the United States Munitions List ("USML") and generally applies to items that are specifically designed, modified, configured, or adapted for military or space applications. These regulations are administered by the U.S. Department of State, Directorate of Defense Trade Controls ("DDTC").
3 The Form I-129 is used to petition for an H-1B, H-1C, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant worker. The form may also be used to request an extension of stay or change of status for an alien as an E-1, E-2, or TN nonimmigrant.
4 It is unclear why some variation of the proposed export controls questions did not reappear on the Form I-129 for nearly five (5) years. We surmise that the GAO recently conducted a follow-up review of the recommendations posed in their 2002 report only to discover that no changes had been made.
5 If an employer were to check Box 1, they would have been required to answer questions regarding if the technology is subject to the Export Administration Regulations (EAR), the corresponding Export Control Classification Number (ECCN), if the technology was self-classified and if the employer had obtained a Commodity Classification Automated Tracking System (CCATS) ruling, and if so, provide the respective CCATS number.
6 Part 7 did not address the most sensitive U.S. technologies subject to the International Traffic in Arms Regulations (ITAR).
7 Fragomen prepared comments submitted by both export control and corporate immigration interests, including TechAmerica, American Council on International Personnel (ACIP), and over 20 clients submitting individual comments.
8 "Deemed Export" is a term used by BIS to refer to a release of technology to a foreign national in the U.S. The term is not used by DDTC when administering the ITAR. For purposes of this article, we use the term "deemed export" to refer to technology and technical data transfers under both the EAR and ITAR.
9 The employer should also be aware that the certification is considered a "statement" for which an employer could be subject to criminal liability for making a false statement to the U.S. government.
Steven Brotherton is the Managing Partner of the firm's Export Controls Practice Group and is located in the firm's San Francisco office. Karen Server, an Associate with the firm's Export Controls Practice Group, is also located in the San Francisco office. For more information, please visit http://www.fragomen.com/exportcontrols.