EXPORT ATTESTATION FOR FORM I

January 2011 By: Colleen L. Caden and Jeffrey C. Johnson
EXPORT ATTESTATION FOR FORM I-129
This legal update includes background information regarding the attestation on the United States Citizenship
and Immigration Service’s (USCIS) nonimmigrant visa application (Form I-129) regarding export control
compliance.
USCIS AND CERTIFICATION REGARDING
EXPORT CONTROL
OVERVIEW OF EXPORT CONTROLS &
COMPLIANCE WITH USCIS
The USCIS released a new Form I-129 that became
effective on December 23, 2010. The form contains
a new attestation that reads:
The “deemed export” rule is an export of
technology or source code . . . that is deemed to
take place when it is released to a foreign national
within the United States. By way of example, a
deemed export includes: technology released for
export when it is available to a foreign national for
visual inspection; when there is a conversation
about the technology; or when technology is made
available by practice or application. Broadly
speaking, the EAR is concerned with “dual use”
technologies or those that have both commercial
and military or proliferation applications. The ITAR
focuses on dedicated military articles or technology.
Items not subject to the EAR include most publicly
available technologies and software.
“With respect to 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:
(1) a license is not required from either U.S.
Department of Commerce or the U.S.
Department of State to release such
technology or technical data to the foreign
person; or
(2) a license is required from the U.S.
Department of Commerce 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 by the beneficiary until and
unless the petition has received the required
license or other authorization to release it to
the beneficiary.”
Effective February 20, 2011 all employers filing a
Form I-129 on behalf of applicants for H-1B, L-1
and O-1 visas must respond to this attestation.
A relatively small percentage of U.S. exports
require a license. In the government’s view, the
definition of technology is quite broad and may
include any information that is proprietary and is
useful to how the company conducts business.
Technology that may require an export license
includes electronics, computers, sensors and lasers
and materials processing, among other categories.
To make a determination as to whether technology
is subject to export control licensing requires an
analysis of the technology against the export control
statutes as well as the foreign nationals who may
have access to the technology.
With regard to the export attestation on the USCIS
Form I-129, a license may be required based on
what the technology is, the nationality of the
recipient (i.e., where the technology is being
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“deemed” exported), who the end-user is or what
the end-use of the item will be. Therefore, in
completing the Form I-129 attestation, the employer
must determine:
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What is it exporting? If the information the
company is releasing requires a license
from the Department of Commerce it will
be determined based on a review and
analysis
of
the
Export
Control
Classification Number (ECCN) and the
Commerce Control List (CCL).
Where is it exporting to? More specifically,
is the foreign national a citizen of a country
to which the export of the applicable
technology requires a license? Generally,
technology exported to
embargoed
countries and those countries designated as
supporting terrorist activities such as Cuba,
Iran, Libya, North Korea, Sudan or Syria
requires a license.
Who will receive the item? Certain
individuals and organizations are prohibited
from receiving specified U.S. technology
exports, and others may only receive
exports if the technology has been licensed.
Pryor Cashman advises clients on export control
issues including whether the company’s technology
is subject to export control licensing, advising on
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the screening for export control issues in
recruitment and hiring as well as with assisting
clients and their employees during export control
inquiries from U.S. government agencies such as
the
Federal
Bureau
of
Investigation’s
Counterintelligence Department.
CONCLUSION
If your organization requires a license to release
technology or technical information to a foreign
national employee, we would be pleased to discuss
this further with you.
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The foregoing is merely a discussion of export attestation
for Form I-129. If you would like to learn more about
this topic or how Pryor Cashman LLP can serve your
legal needs, please contact Colleen Caden at (212) 3260147, [email protected] or Jeffrey Johnson at
(212) 326-0118, [email protected]
Copyright © 2011 by Pryor Cashman LLP. This Legal
Update is provided for informational purposes only and
does not constitute legal advice or the creation of an
attorney-client relationship. While all efforts have been
made to ensure the accuracy of the contents, Pryor
Cashman LLP does not guarantee such accuracy and
cannot be held responsible for any errors in or reliance
upon this information. This material may constitute
attorney advertising. Prior results do not guarantee a
similar outcome.
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ABOUT THE AUTHORS
COLLEEN L. CADEN
Partner
Direct Tel: 212-326-0147
Direct Fax: 212-798-6304
[email protected]
Colleen Caden joined Pryor Cashman in 2009. She works with a diverse client base including Fortune 100 and
500 companies and represents clients in the professional sports, consumer products, financial services, media,
consulting, higher education and health care industries.
Ms. Caden has experience in all aspects of immigration and nationality law and ensuring compliance with
immigration laws, U.S. Department of Labor regulations and the U.S. Citizenship and Immigration Services
programs. She has extensive experience advising clients on:
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The development and implementation of immigration programs and policies
Strategic planning of long-term and short-term immigration needs to meet their unique circumstances
and needs
Immigration issues related to changing corporate structure
Ms. Caden also has a wealth of experience in preparing temporary visa petitions and applications for permanent
residence. She also regularly speaks on U.S. business immigration issues.
While at Brooklyn Law School, Colleen served as Articles Editor of The Journal of Law and Policy and was
Vice President of the Moot Court Honor Society.
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JEFFREY C. JOHNSON
Partner
Direct Tel: 212-326-0118
Direct Fax: 212-798-6314
[email protected]
Jeffrey Johnson is a partner specializing in the transactional aspects of technology and intellectual property
exploitation (patents, trade secrets, trademarks and copyright) including, in particular, all aspects of mergers and
acquisitions, joint ventures, strategic alliances, private placements and licensing in the biotech, entertainment,
Internet, pharmaceutical, software and telecommunications industries.
Jeffrey typically focuses on transactional matters principally involving intellectual property or goods and
services the value of which is largely attributable to intellectual property. He has represented, among others:
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A public biotechnology company negotiating and documenting numerous strategic alliances, research
and development collaborations, co-promotion agreements, patent and know-how licenses, and other
agreements relating to the development and exploitation of the company's core technologies
A public telecommunications company in connection with a strategic reorganization to maximize the
value of its patent portfolio and licensed rights
A private equity fund in connection with the acquisition and disposition of patent portfolios
A pharmaceutical company's bioinformatics group negotiating and documenting numerous strategic
alliances, software development agreements and software licenses, as well as the group's form
agreements for the provision of bioinformatics services and the licensing of genomic and proteomic
databases
A technology-transfer company in connection with the sale of a portfolio of patents governing webenabled software updating, active desktop and offline browsing
A Korean cell phone manufacturer in connection with the negotiation and documentation of a hand-set
supply agreement with large, U.S.-based cell phone service provider
A telecommunications company in connection with its sponsored research agreements with various U.S.
and foreign educational institutions
A health services company in connection with the purchase of an information management business
including a large, proprietary prescription drug database
A European-based public company in connection with the negotiation and documentation of a strategic
alliance providing for the joint development and commercialization of an ASP-based software
application useful for the on-line calculation, reporting and remittance of sales tax obligations
A public pharmaceutical company in connection with the disposition of certain patent portfolios and
related clinical data and know-how useful in connection with small molecule anti-genomic therapeutics
and small molecule anti-bacterial therapeutics
A privately held company in connection with the sale of a portfolio of patents governing "Web 2.0"
search methodologies
A public biotechnology company in connection with the negotiation and documentation of agreements
providing for the further clinical development and commercialization of a Phase I pharmaceutical
compound in collaboration with a Fortune 100 pharmaceutical company, including a license agreement,
a co-promotion agreement and a manufacturing and supply agreement
Jeffrey has been an invited speaker and panelist at a variety of public and private events.
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