Compliance Solutions

I-129 Part 6 Certification—The Challenges

Avoid deemed export violations with proper I-129 Part 6 Certification

When Part 6 was added to the U.S. Citizenship and Immigration Services (USCIS) I-129 Form, it created a new, but subtle and difficult, challenge for companies and institutions that choose to employ or contract foreign nationals inside the United States while preventing Deemed Export violations.

Our Visual Compliance—Deemed and Hand Carried solution can help with your I-129 Part 6 declarations and certifications, and help you determine what export licenses may be required if you’re considering employing a foreign national.

Avoid deemed export violations with proper I-129 Part 6 Certification

While on the surface, I-129 Part 6 merely states that a company or institution is declaring to USCIS that a prospective employee either does or not require an export license, it is much more than simply putting a checkmark in a box on the form. The declaration requires an elaborate and exhaustive process of collecting and processing information related to the prospective employee, his or her job description, all the departments and persons he or she will have contact with, and all the technology and technical data to which he or she will have access.

The submission of the I-129 form, including Part 6, is a legal attestation that the company or institution has done its due diligence in investigating the potential risk of employing the foreign national in question, and in determining the necessity of obtaining an export license for said foreign national; if any violations of United States Deemed Export laws occur despite your formal I-129 declaration, your organization will be fully responsible for the consequences — besides the threat to U.S. national security resulting from the release of controlled technology to unauthorized foreign nationals, you are exposing yourself to the threat of economic espionage, as well as the government penalties for failing to prevent illegal exports, which can include millions of dollars in fines and even criminal prosecution and imprisonment.

I-129 Part 6—Foreign Nationals and Export License determination

First of all, of course, the prospective employee must be subject to Denied Party Screening to determine whether they appear on any United States or international lists of persons with whom it is illegal to transact. If they fail such a screening, you are not legally permitted to employ the person at all, rendering the completion of an I-129 Form redundant.

Assuming the foreign national passes the Denied Party Screening check, you must now engage in an extensive information-collection procedure to ensure that your I-129 certification decision is informed, as well as exhaustively documented.

As part of your I-129, you must then consult with your Human Resources department process to obtain the prospective employee's job description. Which the individual would have access, then consult with the relevant department head(s), Security, and Information Technology officers to learn whether or not the individual would have exposure to any restricted technology and/or technical data that would necessitate the application for an export license to prevent the illegal release of technology.

At the same time, to ensure that your I-129 form information is fully accurate, it is also vital to consult with any and all of the individual’s sponsors to assemble as much information as possible that may be relevant to the determination of the potential risks involved in giving the foreign national in question access to your technology and facilities.

Again, any deemed export violations that occur as a result of failures on your part to accurately assess the risk posed by the individual will lead to government-imposed penalties. Thus, it is in your best interest not only to investigate as thoroughly as possible the background of the foreign national himself or herself, but also the types of technology and extent of access with the potential to cause an export violation, if any, as well as to assure that the entirety of your information-collection procedure is clearly documented in the event of a government investigation. In the event that an export violation does occur, you want to be able to prove that your company did its due diligence and attested with regard to its obligations concerning its I-129 Form, Part 6. Without such a record-keeping system, a government audit may find your company to have been negligent, fraudulent, and/or criminally responsible for deemed export violations, even if your forms were filled out and submitted correctly.

Even when the foreign national's job description does not include any access to controlled technology or technical data on the premises, your I-129 Form submission must include an attestation that your organization will prevent access by the foreign national to any technology that requires an export license until and unless an export license is obtained. If you declare with your I-129 form that no export license is required because the individual's job description does not include access to any controlled technology, yet you are subsequently found to have done nothing, or not enough, to assure that the individual was prevented from accessing the technology, you will be held liable for any export violations that occur.

Keep your I-129 Information Up-to-Date

If the foreign national in question will not have any access to controlled technology or sensitive technical data, you will attest to that fact on your I-129 Form, Part 6. However, note well that in the event that the foreign national's job description ever changes such that he or she may subsequently have access to controlled technology, then the appropriate export license must be applied for and received before the individual's security access changes, and your system must therefore have a mechanism in place to alert all relevant persons (HR, Security, IT, and the appropriate department) ahead of any such change to allow enough time to submit and receive the applicable license.

If hiring the foreign national would require an export license, it is not necessary to have obtained the export license prior to your submission of the I-129 Form, and the I-129 Form petition may even be granted prior to the export license being obtained; however, unless and until any necessary export license is obtained, your organization is still required to prevent access to the controlled technology by the foreign national even if such access is within the individual’s job description and he or she has already been hired.

All this is to illustrate that the workflow related to I-129 Form Part 6 Certification is an elaborate and time-consuming process—and attempting to accurately retrieve, assemble, document, and submit certification without an automated solution to consolidate the procedure and allow for easy analysis of incoming information is positively overwhelming.