Employers should be aware of the new requirement to complete an export control attestation under penalty of perjury when filing for certain non-immigrant visas for employee beneficiaries. The Commerce Department has suspended the requirement to answer this question on the I-129 until February 20, 2011. In order to accurately complete the new attestation on Form I-129, used for H, L, and O visa status applications, a company must certify that it has reviewed the applicable regulations and either an export license is not required or an export license is required and will be obtained before any controlled technology and data will transfer to the foreign national.

Export classifications and licensing determinations can be complicated and employers do not want to make a misrepresentation on Form I-129. Employers should work closely with an attorney who has expertise in export control law to make the determination.