USCIS Form I-129
Employing a foreign person needing an H-1B, H-1B1, ,L-1, or O-1A non-immigrant work visa (USCIS Form I-129)
General Information
Effective December 22, 2010, Citizenship and Immigration Service (USCIS) requires that employers certify whether or not visa petitions (USCIS Form I-129 section 6) for certain classes of nonimmigrant work visas will require an export license or other government authorization for the release of export controlled technology or technical data to the foreign person in the United States during their employment. Nonimmigrant work visa petitions requiring the new export certification include H-1B, H-1B1, L-1, and O-1A visa petitions.
What is being certified?
Virginia Tech, as the employer of the foreign person, is required to certify:
- 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
- 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.
Who is affected?
At Virginia Tech, affected employees requiring the export certification could include tenured faculty, research faculty, technicians, post-doctoral candidates, technicians, or other faculty and staff categories. This certification is not required for student (F-1) or Visiting Scholar (J-1) visa petitions.
What else is changing?
Terms of Faculty Offer and Terms of Staff Offer are being modified to incorporate conditions of employment requiring satisfactory export review prior to submission of an applicable visa petition to USCIS. Sample terms appear below:
EXPORT COMPLIANCE REQUIREMENTS
Should it be necessary for you to have Virginia Tech petition for an H-1B, H-1B1 Chile/Singapore, L-1, or O-1A visa, the United States Citizenship and Immigration Service (USCIS) requires that Virginia Tech certify it has reviewed Export Administration Regulations (EAR 15 CFR 730-774) and International Traffic in Arms Regulations (ITAR 22 CFR 120-130) and determined whether or not a U.S. Government export license is needed to release controlled technology or technical data to you. You and your department are required to coordinate this review with the Office of Export and Secure Research Compliance (OESRC) prior to submission of your visa petition to USCIS.
When should I do something about this certification?
You can contact the Office of Export and Secure Research Compliance (OESRC) when you prepare your visa petition or terms of faculty or staff offer, and we will assist you by asking you and your potential foreign person employee a brief series of questions designed to help determine if an export license will be needed. Alternatively, once you file the visa petition with International Support Services, a copy of the petition will be forwarded to OESRC for review.
What do I need to do?
To complete this certification, upon receipt of an applicable visa petition, Virginia Tech’s Office of International Services will refer your visa petition to OESRC, which will assist you and your visa applicant by reviewing applicable Export Administration Regulations (EAR 15 CFR 730-774) and International Traffic in Arms Regulations (ITAR 22 CFR 120-130) with you and asking you and your foreign person employee a brief series of questions to determine whether or not a U.S. Government export license is needed to release export controlled technology or technical data to your employee. OESRC will contact the sponsoring faculty member for the visa petition. There is more guidance about this requirement in the instructions for Form I-129 and on other pages of the OESRC website.
NOTE: After December 21, 2010, International Support Services will not submit your visa petition to USCIS without this consultation with OESRC.
OESRC will be happy to assist you in completing this certification...you can contact them at oesrc@vt.edu! If an export license is needed from the Commerce Department or State Department for your employee, they can prepare license requests and submit them on behalf of the university. Bear in mind though, filing for export licenses takes time (45-90 days after license application) for approval from the government after filing. Failure to obtain the appropriate license or other government approval, or failure to file correct export information on the visa petition can have civil and criminal penalties. The Office of Export and Secure Research Compliance (OESRC) can help you be certain your visa certification and license application is in compliance with applicable export and sanction laws.