As of December 23, U.S. Citizenship and Immigration Services (CIS), an arm of the Department of Homeland Security (DHS), will require an employer sponsoring foreign individuals for certain work visa categories (H-1B, H-1B1, L-1 and O-1A) to file a revised version of Form I-129 (Petition for Nonimmigrant Worker). The new form will now require the employer to certify -- under penalty of perjury -- that it has first reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and affirmatively "determined" either no export license is needed from the relevant agencies who enforce the EAR (the Department of Commerce) and the ITAR (the Department of State) for the worker's exposure to the employer's technology or such an export license is needed and the employer will then "prevent access" to any controlled technology within the employer unless and until the employer has secured the proper export license. It should also be noted that Immigration and Customs Enforcement (ICE), which is another arm of DHS and thus a sister agency to CIS in the same department, has been aggressively investigating cases of illegal access by non-Americans to controlled technology under the EAR and the ITAR.

An employer should respond to these new CIS certification requirements on the new Form I-129 only after careful consideration of its factual and legal basis to make such certifications. In particular, if an employer has not previously dealt with the EAR or the ITAR before but wants to offer employment to foreign workers in the H-1B, H-1B1, L-1 or O-1A visa categories, the employer will likely need first to examine those U.S. export control laws to determine their applicability before completing these new certification requirements on a Form I-129. The employer's certification will pertain not only to the employer's own technology but also that of any of the employer's suppliers or customers that would be accessible by the foreign worker in the employer's work environment.

For further assistance with the new I-129 form, please contact Saiko McIvor (Minneapolis), Craig Peterson (Minneapolis), Carllene Placide (Seattle) or Jeff Peterson (Vancouver, BC). For further assistance with the EAR or the ITAR, please contact Nelson Dong (Seattle), Larry Ward (Seattle) or Rob Crowley (Seattle).