Primary Contributor: David Ware, David Ware & Associates
Additional Contributions: Loveness Schafer, Louisiana State University
Reviewed by Teri Albrecht, University of Texas-Austin, David Elwell, Brandeis University, Jeanne Kelley, Boston University, David Fosnocht, NAFSA, Steve Springer, NAFSA
What petitions does this affect: All H-1B, H-1B1 Chile/Singapore, L1, and O-1A petitions
Use of the new Form I-129 ("Rev. 01/11/11") became effective on December 23, 2010. However, completion of "Part 6: Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States" is required beginning February 20, 2011.
USCIS Guidance Expected
As this resource was in preparation, there were indications from USCIS that guidance concerning the attestation might be forthcoming. It was unclear whether the guidance would be for USCIS adjudicators, for petitioners, or for both. NAFSA will post any such guidance on its website.
Regardless of the nature of the petitioner’s institution or the duties to be performed by the foreign national beneficiary, unless USCIS issues guidance to the contrary, the attestation in Part 6 must be completed. This imposes additional institutional burdens, with the extent of the burden dependent on the type of petitioning university. For example, a major research university that is petitioning for a researcher in nanotechnology as well as a liberal arts school petitioning for a professor in Latin American Studies both must complete Part 6. While both must complete the form, the internal procedures to be implemented at each will depend on the nature of the work of each department, and the makeup of the institution.
Research-oriented universities should already have in place an export control office or official responsible for ensuring compliance with export control laws. These universities should be able to utilize the expertise and knowledge of these offices in order to establish procedures to complete Part 6 for all university positions.
Schools that do not generally conduct scientific research and previously have not been concerned with export control compliance must still address the requirements imposed by Part 6 by completing the necessary review process. As these universities may not have a standalone export control office, either the expertise will have to be developed in-house or outside counsel will have to be consulted in order to establish procedures to complete Part 6. If the university decides to keep the process in-house, a discussion involving general counsel and the preparing entity must occur so that it may be determined who will review the necessary regulations, document the process, and execute the certification.
What Measures Need to be Considered to Create the Necessary Process on Campus?
Review current export control practices and compliance campuswide.
One of the steps that universities will have to take to adapt to the requirements imposed by Part 6 is to review their current practices regarding export control. Where and how is this function handled? At the departmental, General Counsel, or other level? At some schools, creation of an export control office or officer may be necessary. At others, Part 6 will require the creation or enhancement of an interdepartmental process to achieve compliance.
- Set a meeting with your General Counsel Office, Human Resources Office, and Office of Sponsored Projects (OSP) to discuss how your institution will collect and certify this information. Other offices that may need to be involved/need to know are: Legal Affairs and Compliance Offices.
- Many institutions already use specific software to screen individuals for export controls compliance. Check with your OSP or Research Office to determine if this software is already in use.
Open up channels of communication between the hiring department, export control personnel, and the office preparing the Form I-129.
In general, the preparation of the I-129 likely occurs either in human resources, in the international student/scholar office, or with outside counsel (we’ll call this the "preparing entity"), and export control resides in the departments, OSP, or in the General Counsel’s office. In order to best utilize the expertise of these separate entities, channels of communication must be created. Each university will have to determine when and where the process begins and how it travels through these departments to facilitate an efficient completion of the review process that will minimize delays between the time a hiring decision is made and visa petitioning process ends. Once avenues of review, determination, and communication are mapped out, it would be advisable to utilize a questionnaire to facilitate the flow of information.
If you file petitions for your institution: Determine how you will communicate the attestation information to the stakeholders at your institution.
If you contract someone to file petitions on behalf of your institution: Discussion should take place with the entity that files petitions on behalf of your institution regarding how the export control attestation will be administered.
Create documentation of the review and certification process.
At most universities, the preparing entity should be relieved of having to conduct the export control review and certification, since existing export control offices or officials should already have the expertise necessary to perform the review. Therefore, the entity preparing and signing the Form I-129 will have to rely on the conclusions of the export control office/officer to complete Part 6. The individual who signs Form I-129 is certifying to the accuracy of the information provided, under penalty of perjury. For this reason, the creation of the questionnaire or modification of standard intake forms or systems that gathers information mentioned above is critical so that it may be relied upon by the preparing entity. Export control officials and the Office of General Counsel should be charged with drafting the new language for the questionnaires and any changes to educational resources and intake forms for clarity and compliance efforts. A questionnaire would create a record evidencing that the review process was completed, which would be of invaluable importance in the event of an audit.
- See sample questionnaires
Changes to Expect with the New AttestationInvolvement of the Export Controls Office in the Petition Process
The export control office will have to be a part of the preparation process that precedes the filing of Form I-129 for these visa classifications. As those export control offices in existence already have the expertise and knowledge to assist the preparing entity to complete Part 6, they are the most likely candidates to provide the certification at Part 6 on behalf of the university. As this implies that this office would have to be involved in every single visa petition filed by a university, over time this process would be simplified as it determines which departments never utilize technology or technical data covered by ITAR or EAR.
Increased time to prepare and file a petition
The export control office will have to be a part of the preparation process that precedes the filing of Form I-129 for these visa classifications. As those export control offices in existence already have the expertise and knowledge to assist the preparing entity to complete Part 6, they are the most likely candidates to provide the certification at Part 6 on behalf of the university. As this implies that this office would have to be involved in every single visa petition filed by a university, over time this process would be simplified as it determines which departments never utilize technology or technical data covered by ITAR or EAR.Part 6 will certainly add to the time and effort involved in preparing a petition due to the fact that additional university departments may have to be involved in the process and their participation will have to be adequately documented. Whereas before the preparing entity would, basically, relieve the department making the hire of any further obligations, Part 6 will require a back and forth between the two, and the export control office will also have to be involved in the process.
- The increase in time will depend on how efficiently the practices implemented can be performed. The burdens and delays imposed by Part 6 should ease as the practices implemented become more routine and streamlined.
Filing a petition when a license is required
If during the review process it is determined that a license is necessary, the export control office would have to go through the efforts, time, and expense involved in obtaining a license. While the Form I-129 could be filed before a license is obtained, the export control office would have to implement a practice that stresses to the department employing the foreign national that he/she cannot be exposed to any EAR or ITAR covered technology or technical data before the license is acquired, which could be months.
Preparing for the UnexpectedWhat happens if, after the filing and approval of a petition, things change and the beneficiary will require a license in order to access covered technology or technical data?
The deemed export certification requests information at one moment in time: the filing of the petition. What happens if, after the filing and approval of a petition, things change and the beneficiary will require a license in order to access covered technology or technical data? 8 C.F.R. § 214.2(h)(2)(i)(E) requires the filing of an amended petition "to reflect any material changes in the terms and conditions of employment or training or the alien's eligibility as specified in the original approved petition." Practitioners are divided on whether such a change would constitute a "material change" requiring an amended petition, or a "nonmaterial change," which could be reflected the next time the petitioner files for a petition extension. Until USCIS issues guidance on this topic, however, it remains unsettled.
USCIS may, through the audits and worksite inspections, ensure proper completion of Part 6.
Another serious implication of the inclusion of export control law into the nonimmigrant visa process is the prospect that USCIS may seek to verify the information that provided the basis for Part 6, in the course of an on-site fraud or audit investigation. This would be in line with increased action on the part of DHS to verify the information provided in visa petitions generally. Conceivably, DHS could report an employer whose export control processes are deficient to the U.S. Department of Commerce or to the U.S. Department of State.
Ensuring Long-Term Compliance
Periodically provide training programs. Since the export control office and preparing entity have, at most schools, never had to interact to the degree now being requested, it is important that the offices jointly undergo periodic training to ensure that each understands the process and is aware of any new developments. Best practices should also include updating information and instructions for host departments, international scholars, informational resources, websites, etc. to explain basic export control concepts and these new attestations.
Internal audits. It would be advantageous to conduct internal audits to assess the efficiency and level of effectiveness of the process implemented to facilitate the completion of Part 6 of Form I-129. Critical to this audit would be questions such as "Is appropriate export control review and documentation taking place prior to completion of Part 6?" and "Are mistakes or failures of communication taking place in this process?"