Hot Topics in International Trade – August 2022 – Is your business in compliance with the EAR/ITAR certification requirements of U.S. Immigration Form I-129? | Braumiller Law Group, PLLC

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Most companies that employ non-U.S. individuals in the U.S. are familiar with visa requirements, including completing U.S. Citizenship and Immigration Services Form I-129 – Petition for a non-immigrant worker. However, many are less familiar with the affirmative due diligence and certification requirements contained in I-129 Part 6.

Since 2011, U.S. Customs and Immigration requires that all I-129 forms for nonimmigrant visa applications submitted to the U.S. government as part of H-1, L-1, or O -1 include an attestation of export control compliance. Essentially, all corporate sponsors of foreign employees must certify compliance with U.S. export control regulations, including Export Administration Regulations (EAR) and international arms trafficking regulations ( ITAR).

Form I-129 provides:

Part 6: Certification Regarding Dissemination of Controlled Technology or Technical Data to Aliens in the United States.

With respect to technology or technical data that the Petitioner will publish or otherwise provide access to the Recipient, the Petitioner certifies that he has reviewed the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR) and determined that:

  • A license is not required from the US Department of Commerce or the US Department of State to disclose 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 disclose such technology or technical data to the Recipient and the Petitioner will withhold access to the Controlled Technology or Technical Data to the Recipient until and unless the petitioner has received the required license or other authorization to deliver it to the beneficiary.

The above requirements relate to the possible disclosure of restricted technology and technical data to foreign persons located in the United States, also known as “deemed export”. The Export Administration Regulations (EAR) (15 CFR parts 770-774) and the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130) require U.S. persons to request and receive the authorization from the United States government before handing them over to foreign persons. in the United States controlled technology or technical data.

General Filing Instructions I-129 provide that EAR/ITAR certification requirements as a whole will only affect a small percentage of applicants, but companies dealing with restricted/controlled technology or technical data and Sponsoring nonimmigrant visa applications must not only be familiar with deemed export and licensing requirements, but must also comply with the I-129 requirements outlined above.

As the I-129 Part 6 certification requirements require an affirmative attestation that “it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR)” and determined that a license is or is not required based on the prospective employee’s circumstances, this imposes a positive responsibility on the company to exercise adequate due diligence regarding the prospective employee’s access to controlled technology or technical data in order to comply with certification requirements.

Performing this due diligence does not have to be tedious, but requires embedding specific EAR/ITAR access review compliance processes and procedures into the immigration application and corporate compliance procedures. . This can be accomplished with a well-prepared EAR/ITAR Access Questionnaire to be completed by the nonimmigrant employee’s manager or company human resources representative familiar with the potential employee’s job responsibilities. . Any affirmative response indicating possible access to restricted technology or technical data may then be further explored through an additional review process.

In addition, Braumiller Law Group recommends that screening of denied parties also be performed for each non-immigrant employee as part of the due diligence review to ensure there are no conflicts with the lists of people refused.

Finally, after completing the due diligence review and providing the required I-129 certification, the company should maintain a detailed record of the EAR/ITAR due diligence review in the immigration/employment file of the company. the employee.

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