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March-April 2012

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LISTEN AND LEARN: Managing the New I-129 Export Control Certification in Your Practice [Audio Seminar] February 1, 2011 BY ARON FINKELSTEIN AND TIMOTHY SACHSE After nine months, these attorneys still had no clear answer to four BIS advisory requests on I-129 forms. U .S. Citizenship and Immigration Services (USCIS) issued a revised Form I-129, Petition for a Nonimmigrant Worker, on November 10, 2010, which requires U.S. employers to certify their compliance with U.S. export licensing requirements when petitioning for H-1B, H-1B1, L-1, and O-1A visa classifications on behalf of employees. Specifically, the U.S. employer must certify that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined whether an export license from the U.S. Department of Commerce and/or the U.S. Department of State is needed before technology or technical data is released to a foreign-national employee. The failure to properly do so may expose the employer to legal liability. This article recaps efforts to seek guidance from the Department of Commerce's Bureau of Industry and Security in relation to Form I-129's "deemed export" certification requirement. The critical take-away is that because export control law is highly complex and specialized, it is important for immigration practitioners to advise clients to seek guidance from an expert in EAR and ITAR in order to determine whether a license is required in any given case. Seeking Clarification Given the importance of this new certification 16 VOICE requirement, we decided to seek guidance from the U.S. Department of Commerce's Bureau of Industry and Security (BIS). We had hoped that BIS would issue advisory opinions that would help our clients better understand their obligations under this new requirement. In particular, we desired a "bright line" test that our clients could use in all circumstances to determine whether a U.S. export license is needed from the Department of Commerce. As described below, we requested four advisory opinions from BIS. Unfortunately, BIS's broad responses failed to establish that bright line test. The EAR exempts from its provisions technology or soſtware that is "publicly available." Thus, in our first request for an advisory opinion, we sought clarification as to what type of soſtware is considered publicly available. In particular, we wanted to know whether soſtware that is developed and modified using only programming languages in the public domain, such as C++ and Java, would fall within the definition of publicly available soſtware. If so, a large portion of the soſtware developed and/or modified by foreign-national employees in the United States would exceed BIS's regulatory authority. Three weeks later, we received a short, three- sentence answer in which BIS stated that all soſtware, no matter how developed, will be separately evaluated to determine whether it is subject to the EAR. ILLUSTRATION BY BRADLEY AMBURN/SHUTTERSTOCK.COM

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