This post was written Christopher B. Monahan.
The new Form I-129 has highlighted the restrictions on deemed exports of technology to foreign national employees. Originally effective December 23, 2010, the new form requires employers to certify that they will not “release” controlled technology or data to an H-1B, L-1 or O-1 worker without the appropriate “export license,” if one is required. Technology or data can be controlled for export purposes under either the Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulations (“ITAR”). Both the EAR and the ITAR already prohibit the unauthorized disclosure of controlled technical data to foreign persons. U.S. Citizenship and Immigration Services’ (“USCIS”) new form will now require employers to certify that they are acting in compliance with the current law.
The ITAR and EAR are complex and classification can be burdensome depending on the technology involved, the available resources to devote to the project, and the IT issues in identifying and segregating the data. Restrictions on disclosure of controlled data to foreign persons apply even if the technology is not shared outside of the United States and even if the employer does not do any international business.
Due to the concerns and questions raised about the new Form I-129, USCIS has postponed the new form’s requirement that employers certify that they will not release controlled technical data. Employers will not have to complete the portion of the form requiring the certification until February 20, 2011.