When it comes to visa applications and export compliance, there were a lot of questions flying at last week’s BIS update conference in DC. The issue? A new section of the I-129 Visa Application, which first appeared in December, that asks employers to make certifications about the release of controlled technology to visa-applicant employees.
Essentially, Part 6 of the form asks employers to indicate whether or not they have reviewed the ITAR and EAR, and whether a license is required for any release of technical data and/or technology to the foreign-person employee who is applying for the visa. (Assuming a license is required, the employer must further certify that they will prevent access to the technology until such license is obtained from State or Commerce.)
Discussion around this question was lively, to say the least. Many attendees expressed concerns about companies who have HR personnel completing these applications, since those personnel may have little (or no) knowledge of ITAR/EAR controlled technologies – even in their own company. Other questions dealt with how the U.S. Government plans to collect and share this information among all the agencies involved (namely: BIS, DDTC, DHS, and USCIS).
One BIS enforcement official advised that they are just now beginning to collect data on the forms. He was unclear on exactly how the government will use this data. To start, BIS plans to take a sample of the completed forms and conduct “targeted reviews” of those companies. (What’s a targeted review? At a minimum, I suspect it’s a search through license applications to see if any have been submitted by companies who check Box 2.)
He went on to say that completing the form is a “notification of pre-liability” for any company or individual. (NOTE: It’s also a neat tool the government can use to establish knowledge within your company of a licensed export.)
It’s not hard to envision a future date when deemed export violations become more prominent with certain foreign-employee visa holders from certain foreign countries.
Until then, make sure your folks check the right box on the new I-129!
Tom Reynolds is the Vice President of Operations for Export Solutions, a consultancy firm which specializes in ITAR and EAR compliance.