Understanding the New Export Control Attestation Requirement

Help for U.S. Employers of Foreign Nationals

Effective December 23, 2010, the new Form I-129 (Petition for Non-Immigrant Worker) requires employers bringing foreign national workers into the country to take an extra step.

The new export control attestation applies to the employers using H-1B, H-1B1, L-1, and O-1A nonimmigrant visas for foreign employees.

In part six of the new form, employers must review the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and certify that if the employer will be sharing any technology or technical information with the foreign worker, it either:

• Does not require a license to release the information to the foreign person

• Does require a license to release the information from the U.S. Department of Commerce or U.S. Department of State and the information will not be released until the required license has been received

Export of "Controlled Technology" and "Technical Information"

The sharing of "technology" and "technical information" with foreign workers is limited for a number of items that have been identified on the EAR's Commerce Control List (CCL) and the ITAR's U.S. Munitions List (USML). Items on the CCL may be subject to export licensing and other restrictions.

The concern is that an "export of controlled technology" will be disclosed to a foreign person without proper licensing and that would basically be the same as exporting it to the worker's home country. Exports of technology and technical data to foreign countries are limited, so by complying with this new export control attestation requirement, employers are helping secure the information from being inadvertently exported.

An export of controlled technology can be as simple as allowing a foreign worker to read technical blueprints or specifications or when a supervising employee is using the technology and it is made available to the foreign worker. Such exports must be authorized through an export license issued by the appropriate government agency before the information is released to the foreign worker.

For more on the applicable regulations and to see how to apply for a deemed export license, check out: EAR's requirements at www.bis.doc.vov/deemedexports or ITAR's requirements at www.pmddtc.state.gov/faqs/license_foreignpersons.html.

For more in-depth information, check out the six training modules on the "Essentials of Export Controls" on the Department of Commerce's Bureau of Industry and Security (BIS)'s website.

Compliance Tips for Employers

As an employer of foreign workers, be mindful of the new attestations so that you don't inadvertently violate the export regulations. Make sure that I-129 petitions filed are on the new version of the form ("Rev. 11/23/10" will be in the lower right hand corner). Export classifications and licensing determinations are complicated. Before signing the I-129, check with your company's general counsel or export compliance department to make sure that all aspects of export control regulations within the company are understood.

Employers that breach the ITAR or EAR, even if inadvertently, can be penalized by the federal government.