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Form I-129 Deemed Export Attestation

The United States Citizenship and Immigration Services requires employers to complete Part 6 of Form I-129, the “deemed export attestation”, for H-1B, H-1B1, L-1, or 0-1A non-immigrant worker visa applicants to affirm that the prospective employee covered by the visa request (1) will not be exposed to restricted technology/technical data that would require an export license; or (2) an export license will be obtained before that employee is given access to that information/technology.

In order to complete this attestation the applicant must first assess what technology/technical data the foreign national will need access to as a part of their work at the University.

If the items that the foreign national will be exposed to are (1) not military in nature, (2) freely available for purchase by the general public, and (3) contain no information related to the development, production or use of those products that is not included in all sales to the general public then it is almost certain that no license will be required.  However, if an item is military in nature, or specifically designed, developed, configured, adapted, or modified for military application a license will always be required, including if the foreign national will be exposed to technical data related to the  item.  If an item is not primarily military in nature but the foreign national will have access to related information or data that is not available to the general public then a classification will have to be made on the Commerce Control List (CCL) to determine whether a license may be required.

“Technology” is the term used by the The Department of Commerce Bureau of Industry and Security (BIS) in its Export Administration Regulations (EAR) to reference information necessary for the development, production or use of a product that may be found in the CCL.  “Technical Data” is a term used by the State Department Directorate of Defense Trade Controls (DDTC) in its International Traffic in Arms Regulations (ITAR).  Under ITAR an item or technical data relating to that item will be considered a defense article if that item is found on the United States Munitions List (USML) or if that item is specifically designed, developed, configured, adapted or modified for military application.

Checklist

To determine whether or not a prospective employee entering the U.S. under one of the above-mentioned Visas will be exposed to technology or technical data such that a license may be required it may be helpful to use this checklist.

1.  Is the prospective employee from Iran, North Korea, Syria, Cuba or South Sudan?

2.  Will the prospective employee have access to encryption technology (beyond commercially available software)?

3. Will the potential employee be involved in a project that: (a) has a Technology Control Plan (TCP) in place; (b) requires approval, or prohibits use, of foreign citizens on the project; (c) has a military purpose or military funding; (d) involves spacecraft, satellites, rockets, missiles, unmanned aerial vehicles or related items or technology; (e) requires sponsor approval prior to publication or discussion at an open conference; or (f) requires access to proprietary information protected under a non-disclosure agreement?

If you answered “yes” to any of these three questions you should contact the campus Export Control Officer and provide all available information related to the project and the prospective employee.