Part 6 of the new version of Form I-129 states: “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:

Federal law prohibits the “export” of controlled technology and technical data to certain foreign nationals in the United States without a license. In completing Part 6, the petitioning employer must certify that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that either (1) a license is not required to release the technology to the beneficiary, or (2) a license is required and the petitioner will prevent the beneficiary’s access to the technology until the petitioner has secured a license or other authorization.

Petitioners who are seeking H-1B, H-1B1, L-1 or O-1A classification on behalf of an employee or potential employee are required to answer the questions in Part 6 beginning February 20, 2011.

Q: Where is the export control question on the new Form I-129 and what does it say?

Part 6 of the new version of Form I-129 states:

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.

The petitioner must check one of the above boxes on the form.

Q: What is controlled “technology” and “technical data”?

“Technology” and “technical data” that are controlled for release to foreign persons are identified on the Export Administration Regulations (EAR) Commerce Control List (CCL) and
the International Traffic in Arms Regulations (ITAR) U.S. Munitions List (USML). The Department of Commerce Bureau of Industry and Security (BIS) administers the EAR. The Department of State Directorate of Defense Trade Controls (DDTC) administers the ITAR.
The EAR uses the term “technology” to refer to information for the development, production or use of “dual-use” products or software.

“Technology” that is required for the development, production or use of items on the EAR’s CCL may be subject to export licensing and other restrictions, depending on the nature of the technology,
the destination, the end-user and end-use. An export of controlled technology or technical data can occur when it is disclosed to or transferred to a foreign person, whether in the United States or abroad.

Specifically, section 734.2(b)(2)(ii) of the EAR (15 CFR §734.2(b)(2)(ii)) states that an export of technology to a foreign national in the United States is “deemed to be an export to the home country or countries of the foreign national.” This is commonly referred to as the “deemed export” rule.

While the ITAR does not use the phrase “deemed exports,” the ITAR contains a similar concept. Section 120.17(a)(3) of the ITAR (22 CFR §120.17(a)(3)) states that an export occurs when
“technical data” is disclosed (including oral or visual disclosure) or transferred to a foreign person in the United States.

Therefore, if an export license is required to export EAR controlled technology or ITAR controlled technical data to a certain country, an export license or other authorization will be required to disclose or transfer such technology to a foreign national of that country who is
located in the United States.

Q: Where can I find the applicable regulations?

BIS is responsible for issuing “deemed export” licenses for the release to foreign persons of EAR controlled technology. DDTC is responsible for issuing export licenses and authorizations for the release of ITAR controlled technical data to foreign nationals in the United States.

Information about the EAR and how to apply for a deemed export license from BIS can be found at www.bis.doc.gov. Information about EAR’s requirements pertaining to the release of
controlled technology to foreign persons is at www.bis.doc.gov/deemedexports.

Information about the ITAR and how to apply for an export license from DDTC can be found at www.pmddtc.state.gov. Information about the ITAR’s requirements pertaining to the release of
controlled technical data can be found at:

http://www.pmddtc.state.gov/faqs/license_foreignpersons.html.

Q: Why is this issue relevant to a visa petition on behalf of a nonimmigrant foreign national?

As noted above, U.S. law prohibits the “export” of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. U.S. law
treats as an export the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not engage in any other exporting activities.

Technology or source code is considered “released” for export when it is made available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.), when technology is exchanged orally, or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. Such exports of controlled technology or technical data must be authorized through an export license issued by the appropriate government agency before release to the nonimmigrant foreign national.

Therefore, to properly complete the new I-129 form, an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign
national employee to determine whether an export license may be required to be obtained from BIS or DDTC before releasing such technology or technical data to the foreign national.

Q: To what visa classifications does the new attestation apply?

H-1B, H-1B1, L-1, and O-1A.

For more information please feel free to contact us at:

David H. Nachman, Esq.
NACHMAN & ASSOCIATES, P.C.
Immigration and Nationality Attorneys
VISASERVE PLAZA
487 Goffle Road
Ridgewood, New Jersey 07450

Phone (201) 670-0006 (x100)

Facsimile (201) 670-0009

WE ALSO HAVE NEW YORK OFFICES LOCATED AT 7 WEST 36TH STREET, 14TH FLOOR, NEW YORK, N.Y. 10018 (NEAR FIFTH AVENUE).

FOR INFORMATION ABOUT OUR OFFICES IN MONTREAL AND TORONTO, CANADA AND OUTBOUND IMMIGRATION OPTIONS TO CANADA PLEASE E-MAIL US AT INFO@VISASERVE.COM.

YOU CAN ALSO VISIT US ON THE WORLD WIDE WEB AT WWW.VISASERVE.COM.

The U.S. Department of Labor has promulgated a helpful guide for employers about the H-1B nonimmigrant visa process.

Check it out at:

http://www.dol.gov/elaws/h1b.htm

By David H. Nachman, Esq., Managing Attorney – Nachman & Associates, P.C.
(Ridgewood, New Jersey, New York City and Canada), Business and family Immigration Lawyers and Attorneys.

As we have recently reported, H-1B “season” for the 2010-2011 Fiscal Year will begin on April 1st 2010. This means that H-1B employers will be able to submit H-1B nonimmigrant professional and specialty occupation worker visa petitions requesting an October 1st 2010 start date. Our offices continue to remain poised to assist U.S.
employers to prepare and submit these petitions.

Recently, the U.S. Department of Homeland Security, Citizenship and Immigration Service (”CIS”) implemented several important changes to the H-1B “professional and
specialty occupation” work visa program in the U.S. The changes have alarmed many H-1B employers. Some of the changes included redefining the employer-employee relationship for third-party worksite placements.

The new guidelines were set forth a January Memorandum from the Associate Director of Service Center Operations, Donald Neufeld (the “Neufeld Memo”). While it may be
the case that the Neufeld Memo targets consulting companies that place H-1B visaholders at third-party sites, it appears that the document may have a significant impact on U.S.
employers who use H-1B nonimmigrant contract consultants to supplement their full-time workforce. The use of contract consultants (such as H-1B nonimmigrants), especially in an economic downturn or recession, continues to be critical to many organizations.

For example, information technologies projects are of a limited nature and duration. Organizations find it to be economically feasible to engage the services of temporary consultants as opposed to creating a full-time position.

If inappropriately applied, the guidelines set forth in the Neufeld Memo can result in (1) denials of H-1B amendments and extensions; and (2) denials of entry to the U.S. of H-1B
nonimmigrants who have traveled internationally; and (3) increased propensity by CIS for H-1B site visits and H-1B enforcement actions.
The issues raised in the Neufeld Memo are of great concern for H-1B employers as well as H-1B nonimmigrants.

The ripple effects of the Neufeld Memo are still spreading. We will continue to monitor any new developments as they surface. For more information
about the H-1B nonimmigrant visa or the Neufeld Memo, please feel free to contact our offices at 201-670-0006 (X100) or e-mail to us at info@visaserve.com.