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Immigration - - The Export Law Piece Part 6 of Form I-129

March 22, 2017

 

PART 6

The revised Form I-129 at Part 6 is an attestation by a Petitioner regarding the release of controlled technology or technical data (jointly, technology) to foreign persons in the United States.

Part 6 requires a Petitioner to affirm that they have reviewed the export control regulations and to indicate whether an export license is required from either the Depart of Commerce (DOC) or the Department of State (DOS) to release technology to the beneficiary of the Petition.

If an export license is required, the petitioner must certify that the beneficiary will not access such technology until the license has been obtained.

DEEMED EXPORT

The US Export Administration Regulations (EAR) enforced by the US Bureau of Industry and Security and the US International Traffic in Arms Regulations (ITAR) enforced by the US Department of the Treasury indicate what type of technology is controlled.

If a foreign national is exposed to technology in the US, it is as if that technology has been exported to the country of that national. For example, if a foreign national from Italy is exposed to technology, it is as if that technology has been exported to Italy even though the national and the technology never left the US. The technology is “deemed” to have been exported, technically, a “deemed export.”

Most electronic products, particularly those produced in Silicon Valley use or contain encryption. Most such products are controlled under the EAR as dual use items. This means that an export analysis must be accomplished to determine if the beneficiary can be exposed to technology at the workplace or anywhere in the US for that matter, before Part 6 of Form I-129 can be properly completed.

CLASSIFICATION

Each commercial product, component, and technology has an Export Control Classification Number (ECCN) which can be found in the EAR; and military type products, components and technology usually fall within Categories of the ITAR. Some products, like those which use or contain encryption, are considered “dual use” products which means that they could possibly be used for commercial purposes and for military purposes. Dual use products are controlled under the EAR.

Once a product is classified and an ECCN is determined then that classification can be compared to the Commerce Country Chart (CCC) which is part of the EAR. That comparison will indicate if a technology can be exported to a particular country, i.e., for deemed exports to a foreign national from a particular country, without an export license. The CCC also indicates the reason that the technology is controlled. For example, anti-terrorism, national security, Regional stability, crime control, etc.

The same analysis must be accomplished in order to indicate in Part 6 of the I-129 Form that no export license is required because a foreign national (beneficiary) from a certain country will be working for the principal. It is impossible to determine if an export license is required without first understanding the technology to which the beneficiary will have access, analyzing its functionality for classification, determining an ECCN and comparing same to the CCC---then, and only then can Part 6 be completed.  

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