On 23 November 2010, US Citizenship and Immigration Services (CIS) released a revised Form I-129 "Petition for a Non-immigrant Worker." The revised Form I-129 imposes new certification requirements on companies applying for H-1B, H-1B1 Chile/Singapore, L-1 and O-1A visas for temporary workers. Specifically, applicants must certify that they have reviewed the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) administered by the US Department of Commerce (Commerce) and US Department of State (State). Companies must also certify that they have made a determination whether a license is required from Commerce or State before the foreign temporary worker receives access to controlled technology or technical data. These new certification requirements relate to "deemed export" provisions of US export control laws. A "deemed export" occurs when technology (i.e., information necessary for the development, production or use of a product) is released (i.e., made available) to a non-exempt foreign national within the United States.

In effect, the revised Form I-129 imposes on petitioning companies an affirmative obligation to conduct a self-assessment as to whether any of their technology or technical data is subject to EAR/ITAR and, if so, whether a license is required before the foreign person covered by the application has access to that technology or technical data.

Companies should carefully review their export control compliance procedures to ensure that they are in compliance with US export control laws before making the new certifications.

Companies applying for certain temporary worker visas (H-1B, H-1B1, L-1, and O-1A) must use the revised form as of 23 December 2010. The trade attestation requirement is effective February 20, 2011. Accordingly, employers must make the attestation on all H-1B petitions received by CIS on or after February 20, 2011 (effectively February 21st, since February 20th is a Sunday). Please contact us if you have any questions regarding the new certification requirements or require assistance in determining if your technology is covered by US export control laws.

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