Export Control Attestation Delayed Until February 20 for H-1B, L-1 and O-1 Employers

U.S. Citizenship and Immigration Services (USCIS) announced a last-minute delay of the new export control attestations on Form I-129 on December 22. Originally scheduled to take effect on December 23, the new attestation would require employers seeking to sponsor foreign nationals for employment in H-1B, H-1B1, L-1 and O-1 visa categories to certify compliance with “deemed export” laws. USCIS issued a new I-129 form, which added questions regarding employer compliance with the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). These regulations provide that certain technology and technical data are “deemed” to be exported if the same are released or provided to a foreign national in the United States. All employers, not just those in defense or highly technical industries, will need to make the attestation. As a result of the delay announced on the USCIS website, Part 6 of the I-129 can be left blank on any petition filed before February 20, 2011.

The new I-129 form, used by employers filing H-1B, H-1B1, L-1, TN, P and O-1 visa petitions with USCIS, has several other new questions, including whether the sponsored worker will work at a third-party site.  This inquiry appears to be an apparent follow-up to the increased USCIS scrutiny on consultants and contractors seeking H-1B status. For more information on the new I-129 form, please see the December 14, 2010 issue of the Immigration eAuthority.