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Immigration Updates – New I-129, New Fees and “Deemed Exports”

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Immigration Updates – New I-129, New Fees and “Deemed Exports”

November 24, 2010

Certification Required Starting December 22, 2010 Regarding Export Control Regulations

Just in time for the holidays, the USCIS published the new I-129 form yesterday, November 23, 2010. Increased filing fees of about 10% are effective today, November 24, 2010. The government has given employers a grace period until December 22, 2010 to start using the new form. Unless employers have already vetted compliance with Export Control Regulations, employers should take the next few weeks to establish internal systems and confirm compliance with the deemed export rules under Export Control Regulations before using the new form.

The new I-129 Form contains increased questions for employers and requires additional evidence to be submitted, as applicable, including:

1. An employer certification regarding compliance with Export Control Regulations for any H-1B, O-1 and L-1 employee beneficiary;

2. Submission of a contract or employment agreement or summary of terms of employment agreement with the foreign national employee; and

3. Additional information for off-site work locations and submission of an itinerary for such work.

While the USICS claims most employers shouldn't have to worry about the new certification requirement, relating that most employers are not subject to Export Control Regulations, the specific certification requirement nevertheless requires an analysis under them. U.S. employers have always been subject to the deemed export rules under Export Control Regulations, the Department of Commerce's Export Administration Regulations (EAR) and the State Department's International Traffic in Arms Regulations (ITAR). The government has stepped up possible enforcement by now requiring an employer certification up front regarding compliance with those rules. Employers who employ foreign nationals from certain countries who have access to sensitive technology are subject to the requirements under the "deemed export" rules even if they do not export services or goods to foreign countries. This technology includes microelectronics, laser technology, artificial intelligence, and encryption software among many others listed.

Enforcement -- Creation of Interagency Federal Export Enforcement Coordination Center

As a step up to enforcement, President Obama signed an executive order on November 9, 2010 requiring the Secretary of Homeland Security to create an interagency "Federal Export Enforcement Coordination Center. The Center will coordinate export enforcement activities currently administered by various federal agencies. The President noted that export controls are critical to achieving national security and foreign policy goals and that executive departments and agencies must coordinate their efforts to enforce U.S. export control laws.

We are working with our clients to establish best practices in this current intersection of immigration laws and Export Control Regulations.

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