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New I-129 Form Brings Export Control Certification for US Employers

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USCIS in December issued a new and “improved” version of Form I-129, which is the form used to apply for temporary foreign workers.

The form, however, imposes on US employers and businesses employing those in H-1B, H-1B- Singapore/Chile, L-1A or L-1B, or O-1 an additional certification requirement pertaining to US export control law.

Under export law, US employers in general cannot release certain types of technology and software to foreign nations, and this includes releasing this information to foreign persons – deemed to be an export – without an export license.

Unfortunately export law is spilling into immigration requirements with this new export certification requirement on the I-129. The US employer must now certify under penalty of perjury that it has reviewed the Export Administrative Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and determine that an export license is not required or that a license is required and the company certifies it will not release the technology information to the foreign person until a license is obtained.

While many technologies will not be covered, the requirement does put the US employer on task to at least review the types of technology that would require licensure. And, if possibly subjected to a license requirement, it puts the the US company on task to review or establish an export control comprehensive procedure and to engage an export control specialist to assist.

For further information about this new requirement,  and what to do, feel free to contact our office.

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