Public comments on the revisions to Form I-129 were originally due on April 9, 2010. NAFSA commented on the original proposal on April 5, 2010, and recommended against involving USCIS in the deemed export control process, which is enforced by the Departments of Commerce and State. In response to the public comments received, USCIS modified its proposal somewhat, but continues to retain the deemed export control attestation. On June 30, 2010, USCIS reopened the comment period for an additional 30 days, to allow comment on the revisions to its proposed changes to the I-129.
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, to properly complete the I-129 as proposed, the signer of the petition 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.
Although NAFSA's comments were limited to the deemed export attestation proposal, USCIS is also proposing the following additional changes to Form I-129 (see USCIS's table of proposed changes for more detail):
- Adding a field to capture a beneficiary's SEVIS ID and EAD number (if any).
- Adding a question about prior J exchange visitor participation: "11a. Has any beneficiary in this petition ever been a J-1 exchange visitor or J-2 dependent of a J-1 exchange visitor? □ No □ Yes. 11b. If yes, to 11a, provide the dates the beneficiary maintained status as a J-1 exchange visitor or J-2 dependent. Also, provide evidence of this status by attaching a copy of either a DS-2019, Certificate of Eligibility for Exchange Visitor status, a Form IAP-66 or a copy of the passport that includes the J visa stamp."
- Adding questions and attestations related to off-site assignment of H-1B beneficiaries and employment under a third party contract.
- More precise questions about the nature of a petitioner's or beneficiary's exemption from the H-1B cap.
- Adding certification language at the signature section that states, "I recognize the authority of USCIS to conduct audits of this petition using publicly available open source information. I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews."