Effective December 22, 2010, employers submitting certain Form I-129 petitions for a nonimmigrant classification (for H Temporary Worker, L Intracompany Transferee and O Extraordinary Ability visa petition approvals) must certify compliance with deemed export rules.

What is a "Deemed Export"?

U.S. export control laws apply to the shipment of products or technical data from the United States to another country. Under these laws, the sharing of technology or source code with a foreign national may also be considered a "export." This sharing is an "deemed export" even if the foreign national is an employee, working for that employer within the United States, because the sharing of the knowledge is "deemed" an export to the foreign national employee’s home country.

What is an Employer's Obligation in Certifying a Deemed Export on the Form I-129?

The employer must indicate on its Form I-129 that it has reviewed the applicable export regulations (called the Export Administration Regulations ("EAR") and the International Traffic in Arms Regulations ("ITAR")) and has made a determination as to the applicability of those regulations with respect to the foreign national employee who is the beneficiary of the employer's I-129 petition. Specifically, the employer must check one of the following boxes:

• A license is not required from either the U.S. Department of Commerce or U.S. Department of State to release such technology or technical data to the foreign person; or
   
• A license is required from the U.S. Department of Commerce or U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

To accurately complete this section of the Form I-129, the employer's signator will need to consult with the company officials responsible for export compliance at the very outset of initiating an H or L or O nonimmigrant petition on behalf of a foreign national.

What Challenges Does this Present to Employers?

For many employers, this requirement will pose some significant challenges. For example, at the start of hiring a new engineer or software developer, an employer may not know the exact types of projects on which the new hire will work. Some projects might require a deemed export license, while other projects and technologies might not. Furthermore, how the technology is used and for whom it is being developed will also impact the employer's export control obligations. Development for civilian uses is governed under a separate export control regulation (EAR) compared with development for government defense purposes (ITAR). Because of these intricacies, employers should rely on the expertise of their export control specialists in determining how to respond to the question posed on the I-129.

What are the Penalties for Failing to Complete the Certification Correctly?

An employer's certification on the Form I-129’s export control question is considered a statement made to the U.S. government. Therefore, inaccuracies may be treated as a false statement to the government and could subject the employer to criminal penalties/sanctions. Furthermore, for immigration purposes, if the government determines that the statement was false on the Form I-129 it could deny the petition or revoke a previously-approved petition, and leave that foreign national employee without status or work authorization. In light of these penalties, employers must accurately and carefully assess the applicability of this new deemed export reporting obligation.