Preparing for the Deemed Export Attestation on the New Form I-129

November 19, 2010

NAFSA Practice Advisory

Version: December 23, 2010


This advisory explores the new "deemed export" attestation for H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners, that USCIS has included on a newly revised version of Form I-129 (rev. 11/23/2010).

The new form became available on November 23, 2010, and will be required starting December 23, 2010 (see timeline section below for important notes).

Please note: Late in the day on December 22, 2010, USCIS announced that H-1B, H-1B1, L-1, and O-1 petitioners who file the new form will not have to complete the new deemed export compliance attestation in Part 6 of the new form, until February 20, 2011. And so, although the new version of the form (rev. 11/23/2010 or later) must still be used as of December 23, 2010, the deemed export compliance attestation on that form does not have to be completed on petitions filed before February 20, 2011.

A NAFSA Practice Resource on the Form I-129 Export Control Attestation further discusses campus implications of the requirement.

Table of Contents



New Form I-129 Timeline

As you prepare your petitions, please keep the following dates in mind:
  • November 23, 2010 – revised form available on www.uscis.gov/i-129
  • December 22, 2010 – last day that USCIS will accept previous editions of the form (petitions must be postmarked or filed on or before this date for the previous edition to be accepted)
  • December 23, 2010 – USCIS will only accept the 11/23/2010 (or later) version of Form I-129. USCIS will reject petitions postmarked on or after December 23, 2010 that use previous editions of the form.
  • February 20, 2011 –  Although the new version of the form (rev. 11/23/2010 or later) must be used as of December 23, 2010, the deemed export compliance attestation on that form does not have to be completed on petitions filed before February 20, 2011.


NAFSA notes:
  1. New I-129 fees. Although the new version of Form I-129 will not be required until December 23, 2010, the new fee for Form I-129 must accompany any I-129 mailed or filed on or after November 23, 2010, the effective date of new USCIS fees (The base I-129 fee has been raised to $325.00, and the I-907 Request for Premium Processing Service fee has been raised to $1,225.00).
  2. Temporary unavailability of I-129 e-filing beginning December 23, 2010. A USCIS fee fact sheet states that, "beginning on Dec. 23, 2010, e-filing for Form I-129 will be temporarily unavailable while USCIS updates its systems to reflect the new version of the form. USCIS will notify the public on www.uscis.gov when e-filing is again available for this form."
  3. Late in the day on December 22, 2010, USCIS announced that H-1B, H-1B1, L-1, and O-1 petitioners who file the new form will not have to complete the new deemed export compliance attestation in Part 6 of the new form, until February 20, 2011. And so, although the new version of the form (rev. 11/23/2010 or later) must still be used as of December 23, 2010, the deemed export compliance attestation on that form does not have to be completed on petitions filed before February 20, 2011.

A Key Change: The Deemed Export Attestation

A new "deemed export" attestation is the key change on the new Form I-129. This attestation must be made by H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitioners only. However, USCIS announced on December 22, 2010 that H-1B, H-1B1, L-1, and O-1 petitioners who file the new form will not have to complete the new deemed export compliance attestation in Part 6 of the new form, until February 20, 2011. And so, although the new version of the form (rev. 11/23/2010) must still be used as of December 23, 2010, the deemed export compliance attestation on that form does not have to be completed on petitions filed before February 20, 2011. Petitioners should use this time to finalize their protocols for completing the attestation once it is required in February.

Figure 1 : Deemed Export Attestation in Part 6 of the new Form I-129
Draft Deemed Export

I-129 instructions

Figure 2: \Deemed Export Attestation instructions for new Form I-129 Theexplain this requirement as follows:
Certification Pertaining to the Release of Controlled Technology or Technical Data to Foreign Persons in the United States
U.S. Export Controls on Release of Controlled Technology or Technical Data to Foreign Persons. The Export Administration Regulations (EAR) (15 CFR Parts 770-774) and the International Traffic in Arms Regulations (ITAR) (22 CFR Parts 120-130) require U.S. persons to seek and receive authorization from the U.S. Government before releasing to foreign persons in the United States controlled technology or technical data. Under both the EAR and the ITAR, release of controlled technology or technical data to foreign persons in the United States—even by an employer—is deemed to be an export to that person's country or countries of nationality. One implication of this rule is that a U.S. company must seek and receive a license from the U.S. Government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, L-1 or O-1A beneficiaries.

Requirement to Certify Compliance with U.S. Export Control Regulations. The U.S. Government requires each company or other entity to certify that it has reviewed the EAR and ITAR and determined whether it will require a U.S. Government export license to release controlled technology or technical data to the beneficiary. If an export license is required, then the company or other entity must further certify that it will not release or otherwise provide access to controlled technology or technical data to the beneficiary until it has received from the U.S. Government the required authorization to do so. The petitioner must indicate whether or not a a license is required on Page 6, Part 7 of Form I-129.

Controlled Technology and Technical Data. The licensing requirements described above will affect only a small percentage of petitioners because most types of technology are not controlled for export or release to foreign persons. The technology and technical data that are, however, controlled for release to foreign persons are identified on the EAR's Commerce Control List (CCL) and the ITAR's U.S. Munitions List (USML). The CCL is found at 15 CFF Part 774, Supp. 1. See http://www.access.gpo.gov/bis/ear/ear_data.html#ccl. The USML is at 22 CFR 121.1. See http://www.pmddtc.state.gov/regulations_laws/itar.html. The EAR-controlled technology on the CCL generally pertains to that which is for the production, development, or use of what are generally known as "dual-use" items. The ITAR-controlled technical data on the USML generally pertains to that which is directly related to defense articles.

The U.S. Department of Commerce's Bureau of Industry and Security administers the CCL and is responsible for issuing licenses for the release to foreign persons of technology controlled under the EAR. The U.S. Department of State's Directorate of Defense Trade Controls (DDTC) administers the USML and is responsible for issuing licenses for the release to foreign persons of technical data controlled under the ITAR. Information about the EAR and how to apply for a license from BIS are at www.bis.doc.gov. Specific information about EAR's requirements pertaining to the release of controlled technology to foreign persons is at www.bis.doc.gov/deemedexports. Information about the ITAR and how to apply for a license from DDTC are at www.pmdtc.gov. Specific information about the ITAR's requirements pertaining to the release of controlled technical data is at http://www.pmddtc.state.gov/faqs/license_foreignpersons.html.



Deemed Export Basics

Technology or source code is considered to be exported not only under the traditional sense of shipping it overseas; an export of technology or source code can also be "deemed" to take place when it is released to a foreign national within the United States. Deemed exports must be authorized through an export license issued by the responsible Government agency. Technology or code is considered "released" for export when it is "available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology."

Companies as well as universities have for many years been required to comply with export control laws, but compliance is generally not managed by the same units that prepare I-129 petitions. Even though many activities at colleges and universities can benefit from several exclusions to the export license requirement (such as the "basic research" exemption), to properly complete the deemed export attestation the petitioner would first have to inquire with the office at his or her institution that handles export control issues, and develop an institutional protocol for completing the form. Offices that might typically be charged with export control duties include: Provost Office, Compliance Office, General Counsel Office, Institutional Research, Office of Sponsored Programs, Office of Research, Grant Accounting, etc.

Even though most campus-based immigration practitioners are not charged with export control compliance, being familiar with the terms and issues that campus export control compliance units deal with can help when incorporating this new I-129 attestation requirement into institutional business processes. And so, you may also wish to consult additional sources of general background information on export controls at universities, such as the 2004 Council on Government Relations (COGR) publication called "Export Controls and Universities- Information and Case Studies."


Dealing With the Deemed Export Attestation at Your Campus

Since the offices that handle deemed export compliance are usually other than the office that handles I-129 processing, implementing the new deemed export attestation becomes an institutional issue. The office that processes Form I-129 can be proactive on this issue by taking the following actions:
  1. Become familiar with the I-129 attestation language and I-129 roll-out schedule.
  2. Be able to identify the underlying sources of authority regarding deemed exports, by reading the I-129 deemed export attestation instructions.
  3. Identify the unit(s) on campus that are in a position to make an attestation regarding deemed exports, and meet with those units to explain the new requirement and discuss procedural issues.
  4. If there is no such office, consult with institutional counsel to identify how and who will make the attestation for the institution.
  5. Develop an institutional sign-off form that can be completed by the school offices that handle deemed export compliance. That might, for example, consist of a space for the name, position, and country of citizenship and residence of the beneficiary, a detailed description of the beneficiary's duties and type of equipment and software the beneficiary will use or have access to, an image of the deemed export attestation from the I-129 itself, the text of the relevant I-129 instructions, and a space for the name, signature, title, and telephone number of the person who will make the attestation and the date the attestation was made.
  6. Implement the new process.
  7. Continually educate the campus community about the new process.

The Association of University Export Control Officers (AUECO) prepared a practice resource on the I-129 deemed export attestation. The two-page AUECO resource conveniently explains the basics of the I-129 deemed export attestation, highlights the importance of incorporating the appropriate export control officers into the process, and provides several tips for universities.

A NAFSA Practice Resource on the
Form I-129 Export Control Attestation further discusses campus implications of the requirement.

 Other Important Changes To Form I-129

The revised form I-129 also includes other changes, such as:
  • Part 3, Beneficiary information, for beneficiaries in the United States, the form:
    • Asks for SEVIS number of beneficiary if the beneficiary is an F, M, or J nonimmigrant
    • Includes a parenthetical instruction at the Date Status Expires box to read "(mm/dd/yyyy) or D/S"; the current instruction does not explicitly say D/S
  • Part 4, Processing information, includes a new question that asks about prior status as J-1 or J-2, and for copies of IAP-66/DS-2019 or J visa stamp page
  • Part 5, Basic information about the proposed employment and employer:
    • New questions ask if an itinerary is included with the petition (Y/N) and whether the beneficiary will work "off-site" (Y/N)
    • New question on whether beneficiary will work exclusively in the Commonwealth of the Northern Mariana Islands (CNMI)
    • Asks for current number of employees in the U.S.; current form asks for current number of employee
  • Part 7, Signature, contains new certification language for the petitioner to recognize that USCIS can conduct "on-site compliance reviews"
  • Part 9, Explanation page, is a new "attachment" page provided to include further explanations concerning the petition. The current form allowed petitioners to simply put required additional explanations "on a separate page." The new "attachment" page requires a signature.
  • Section 1 of the H Supplement adds statements that the petitioner will:
    • Obtain and post a new LCA when the employee is "assigned to a position in a new location"
    • Not charge back the ACWIA fee to the beneficiary, and will consider any other required reimbursement as "an offset against wages and benefits paid relative to the LCA."
  • On the H-1B Data Collection and Filing Fee Exemption Supplement:
    • Questions are added to determine exemption status regarding the additional fee of $2,000 for H-1B petitions and $2,500 for L petitions, if the petitioner employs 50 or more employees (part-time and full-time combined) and more than 50 percent of the petitioner's employees are H-1B, L-1A, L-1B, or L-2 nonimmigrants (also included on the L supplement). Since August 13, 2010, petitioners have had to annotate their filings with a attestation concerning this requirement [click here for background] while Form I-129 was being amended to include questions that dealt with this requirement.
    • Improved questions for establishing the basis for a claim of exemption from the H-1B cap count
    • New questions and attestations on off-site placement of H-1B workers

Background on the Deemed Export Attestation On Form I-129


On February 8, 2010, U.S. Citizenship and Immigration Services (USCIS) initially proposed changing the Form I-129 petition for nonimmigrant workers, to require H-1B, L-1, and O-1 petitioners to attest that "deemed export" control rules have been complied with in relation to the beneficiary of the petition. NAFSA commented on the original proposed deemed export attestation on April 5, 2010, arguing for the removal of the attestation.

On June 30, 2010, USCIS revised the deemed export attestation, in reponse to public comment (see USCIS's revised supporting statement that shows USCIS's responses to public comments received on the original proposal, and explaining the basis for its revisions to the proposed changes). On July 30, 2010, NAFSA, the Association of American Universities (AAU), the Council on Governmental Relations (COGR), and the Association of Public Land-Grant Universities (APLU), submitted a joint comment letter responding to USCIS's revised proposal. Despite NAFSA's and other associations' arguments that it was not appropriate or effective to include a deemed export attestation on Form I-129, USCIS eventually finalized the form with the same attestation language from its June 30, 2010 revision.