It can be confusing filling out Form I-129. There are many different sections and they are not all easy to understand.

Export Control Attestation Requirement – part 6

When filling out section 6 the employer certifies that he has reviewed the Export Administration Regulations (EAR) regulations and the International Traffic in Arms Regulations (ITAR) regulations. The employer also determines that a license is not required for the technology the H1-B employee is working with or a licensed is required for the technology and the employer will prevent access to the H1-B employee till he receives a license.

The license that is required is received from the U.S. Department of Commerce or the U.S. Department of State.

When an employer fills out a I-129 he will need to check one of the following options in part 6:

• A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person;

or

• A license is required from the U.S. Department of Commerce and/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 to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

There are two lists of “technology” and “technical data” that can’t be released to foreign workers without a license:

• The Department of Commerce Bureau of Industry and Security (BIS) administers the Export Administration Regulations (EAR). The EAR identifies controlled “technology” and “technical data” on the Commerce Control List (CCL).
• The Department of State Directorate of Defense Trade Controls (DDTC) administers the International Traffic in Arms Regulations (ITAR). The ITAR identifies controlled “technology” and “technical data” on the S. Munitions List (USML).

 Why can’t the H1-B worker have access to controlled technology?

The reason why an H1-B worker can’t have access to controlled technology is that is that the U.S. fears that the foreign national might export the information about the technology to his home country or countries out of the United States. An export occurs when the technology is disclosed to a foreign national in the United States. This includes visual and oral disclosure.

(Source: Section 120.17(a)(3) of the ITAR (22 CFR §120.17(a)(3)))

Therefore, if an export license is required to transfer the technology to a foreign country outside the United States, then an export license is required to disclose technology to a foreign worker who is in the U.S.

What does the H1-B employer need to do?

Th H1-B employer need to examine the technology or technical data that will be accessed by the H1-B employee and determine if the data is considered “released” meaning that the technology is accessible to foreign nationals, or if an export license may be required to release such technology to the H1-B foreign worker.