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New Certification Requirements for H-1B, L-1, and O-1 Petitions

An employer who seeks to file a petition on behalf of a nonimmigrant worker in H-1B, L-1, or O-1A classification must now certify that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) with respect to the controlled technology or technical data that the petitioner will release to a foreign beneficiary. Pursuant to the EAR and the ITAR, an employer’s release of this information to foreign persons is deemed to be an export to that person’s country or countries of nationality. As such, the U.S. company must obtain a license from the U.S. government before it can release controlled technology or technical data to its nonimmigrant workers.

The petitioner is now required to certify on Form I-129, Petition for Nonimmigrant Worker, that it has reviewed the EAR or ITAR and determined whether it will require a U.S. government export license to release controlled technology or technical data to the beneficiary. If the petitioner determines a license is required, the company must further certify that it will not release or allow access to the controlled technology or technical data until it has received the necessary license or authorization.

Few petitioners will be affected by the above licensing requirements as most types of technology are not controlled for export or release to foreign persons and are not related to defense articles and defense services. However, the petitioner must review the EAR and ITAR to ensure compliance with the U.S. export control regulations. If you have any questions, please do not hesitate to contact our office.

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