By Farhad Sethna, Attorney, copyright 2014
(No copyright asserted in US Government works or websites)
Other articles on this website also discuss this issue. This article is intended to be an update given the ever-changing nature of the regulations in this area.
In 2011, the USCIS (United States Citizenship and Immigration Services) began requiring petitioning employers to certify that the employment of any proposed (or existing) employee seeking H-1b or L-1 status or extending such status was not subject to the Export Control regulations.
The Export Control regulations pertain to the export of sensitive or classified information to foreign countries. The regulations are constantly changing due to political sensitivities, conflicts, and alliances. The Export Controls are in effect in ten major areas, and within each of those 10 areas are five categories. These are listed below.
What does the USCIS application require?
The USCIS requires form I-129 for employment-authorized non-immigrant applications.
The current revision (version date October 7, 2011) of USCIS form I-129 (the USCIS website claims “a new edition of this form is coming soon”) requires the following certification – the pertinent language from the form reads as follows:
Part 6. Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States
(For H-1B, H-1B1 Chile/Singapore, L-1 and O-1A petitions only)
With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:
Check Box 1 or Box 2 as appropriate:
□ 1. A license is not required from either U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or
□ 2. A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.
Commerce Control List (“CCL”) Categories
0 Nuclear & Miscellaneous
1 Materials, Chemicals, Microorganisms and Toxins
2 Materials Processing
4 Computers: Part 1 – Telecommunications; and Part 2 – Information Security
6 Sensors and Lasers
7 Navigation and Avionics
8 Marine; and
9 Aerospace and Propulsion
The five “Product Groups” within each of the above categories are:
A Systems, Equipment and Components
B Test, Inspection and Production Equipment
1. Commerce Control List:
The above list (with hyperlinks) can be found (with related supporting regulations) at
That link will take you to other information including the Country Control List.
2. Deemed Exports:
Even if your company does not directly export sensitive and restricted technologies or information to a country to which such exports are controlled, it may still indirectly “export” such information by making it available to a national of that country who works for your company. If such a national is regularly exposed to such information or technology, or works with or researches such technology, then that exposure is deemed to be an “export” of the restricted technology.
A good way to quickly perform an initial assessment if the “deemed export” rule applies is to find out from your company if they have ever needed export licenses for exports to the country of your foreign employee’s nationality and/or permanent residence for any of your company’s products / services. This is a tricky issue, since some employees may hold dual nationality, or nationality in one nation with permanent residency rights in another.
The “Deemed Export” issue is discussed further in general at:
with detailed Q&A at:
Any of these pages will also give you further links for investigation of your specific technology, country restrictions, and related issues.
This is not to be taken lightly – please see an example of government sanctions for violating the “Deemed Export” rule by disclosing restricted information to a foreign employee (a Russian engineer) and sales to a Chinese client:
Taken together, I hope this article helps to direct you to the applicable regulations and FAQ’s for you to determine whether or not your company will require a Export Control license for technology that your foreign employee is exposed to in H-1b, L-1 or O-1 non-immigrant status.
Copyright, Farhad Sethna, Attorney, 2014
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.