Employment of Non-Immigrant Workers
Due to recent additional federal regulatory requirements, the Form I-129 Petition for a Nonimmigrant Worker now requires a “Certification Regarding the Release of Controlled Technology Data to Foreign Persons in the United States” for all workers on an H-1B, L-1 or O-1A visa. Export Control Questionnaire
Any data or technology to which the nonimmigrant worker will have access must be reviewed against the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) to determine whether the data or technology is covered by the regulations.
If the data or technology falls under the EAR or the ITAR a license is required from the U.S. Department of Commerce and/or the U.S. Department of State before the access to the nonimmigrant worker may occur. The export control regulations each impose severe monetary and criminal penalties for failure to comply with their requirements.
The export control regulations impose access, dissemination and participation restrictions on the transfer and retransfer of “controlled” software code and information and on the export and reexport of tangible items. An export is defined as the shipment of tangible items and the transmission or transfer of software code or information to another country, while a “deemed export” is the disclosure of controlled software code or information to foreign nationals in the U.S.
The U.S. Department of Commerce must issue an export license or provide an exception to or exclusion from the license requirement before any controlled tangible item, software or information on the U.S. Commerce Control List (CCL) may be exported or reexported. The CCL may be accessed at http://www.gpo.gov/bis/ear/ear_data.html, Part 774 categories 0-9 and supplements 2 and 3.
The U.S. Department of State must issue an export license or provide an exception to or exclusion from the license requirement before any controlled tangible item, software or information on the U.S. Munitions List (USML) may be exported or reexported. The USML may be accessed at http://www.access.gpo.gov/nara/cfr/waisidx_99/22cfr121_99.html
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