On your mark, Get Set…The I-129 Race

On your mark, Get Set…The I-129 Race

Today marks the one month countdown until the April 1st start of the H-1B visa cap season. For those that are unfamiliar, the H-1B visa program is used by U.S. businesses to employ foreign workers for positions that require highly specialized knowledge. The statutory cap on H-1B visas each year is 65,000 with the first 20,000 H-1B petitions filed for those with U.S. masters degrees exempt from the cap. They typically go lightning fast. Last year, USCIS announced on April 7 that the cap had closed as it had received nearly 233,000 H-1B petitions during the seven day period.

What does this mean in terms of export compliance? Since 2011, USCIS has required companies to complete an export control attestation on Form I-129, Petition for a Nonimmigrant Worker, which must be submitted as part of the H-1B petition. Part 6 of Form I-129 requires petitioners to certify under penalty of perjury that they have reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) to determine whether:

  • a license is not required to release technology or technical data to the foreign beneficiary; or
  • a license is required and the petitioner will prevent access to controlled technology or technical data until a license or other authorization is received.

Part 6 addresses the export compliance concept of “deemed exports” where an export of controlled technology or technical data is released or disclosed to a foreign person in the U.S. or abroad. The release is deemed to be an export to the home country of the foreign person. The EAR and the ITAR require companies to seek authorization from the U.S. government before releasing controlled technology or technical data to nonimmigrant workers. The Department of Commerce is responsible for administering the EAR while the Department of State administers the ITAR and their respective licensing processes.

Thus, the question posed in Part 6 turns on whether your employee will be exposed to technology or technical data that is controlled under the EAR and/or the ITAR. Under the EAR, “technology” refers to information required for the “development,” “production” or “use” of dual-use items on the Commerce Control List (CCL). “Technical data” subject to the ITAR refers to information, other than software, required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance or modification of defense items.

To complete Part 6, you need to answer some important questions: Will your employee be exposed to licensable information in the course of his/her work or training? What hardware and software will he/she be using? Does any of it contain encryption? Do you have technical information on your Intranet? If so, what network access will the prospective new employee have?

Only with these questions answered can anyone sign off on this attestation confidently. Some companies have in-house experts, but most hire export control specialists like CTP to conduct a compliance review. At the kickoff meeting, we provide a summary of the requirements and the necessary diligence process, including a list of documents that need to be collected. It’s not an arduous process but it typically takes a few days.

With April 1 looming, and the application window likely to be short, employers with H-1B petitions should complete this essential diligence immediately.

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