Export Control Issues in H-1B/L-1 Petitions

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The Form I-129 is used to apply for most employment-based nonimmigrant classifications. New text added to the form a few years ago reads as follows:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

  • A license is not required from either the U.S. Department of Commerce or the 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 and/or the 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 to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

This section of the form requires an H-1B or L-1 employer to determine whether an export license is required for the H-1B or L-1 beneficiary and to attest to that determination under penalty of perjury.

Although we won't go into detail here about when a license is or is not required, we did want to bring to your attention a recent development concerning these attestations. In cases where a license is required and an employer has applied for one, we are aware of at least one instance in which the State Department has shared an ITAR license application with USCIS in connection with a nonimmigrant petition.

We are unaware at this time whether this is a widespread practice or an isolated instance. We recommend, however, that employers applying for ITAR/EAR licenses on behalf of nonimmigrant employees share the applications with immigration counsel to ensure there are no inconsistencies between the license application and the nonimmigrant petition.

For additional information on the ITAR/EAR requirements as they relate to nonimmigrant petitions, please contact us.