U.S. Citizenship and Immigration Services recently issued a new Form I-129, effective December 23, 2010. Part 6, "Release of Controlled Technology or Technical Data to Foreign Persons in the U.S.," requires an employer to certify it will not "release" controlled technology or data to an H-1B, L-1 or O-1 worker without the appropriate "export license," if one is required. Under the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR), a "deemed export" occurs when controlled technology or technical data is "disclosed" or "transferred" to a foreign person, whether in the United States or abroad. This can occur when a foreign-national employee reads technical specifications, plans or blueprints or has direct access to source code; or when technology is indirectly exchanged with the employee verbally or under the guidance or supervision of others who have knowledge of the technology. To comply with the law and properly complete the new form, an employer must first classify its technology or technical data to determine if an export license is required. The EAR’s Commerce Control List may be found here and the ITAR’s U.S. Munitions List here. Employers who are not certain if their technology requires an export license should consult with legal counsel who has expertise in export control law.
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