I-129 Certification for Foreign National Hires

This decision tree you are about to launch was designed to help PIs and Supervisors determine whether or not the hiring of a foreign person (the Beneficiary) may require an export license from the United States (US) Government. Export licenses may be obtained through the Office of Export Controls. The decision tree will result in a form which must be completed, signed, and routed according to the instructions found on the form.

Questions must be answered by the PI or Supervisor. It may not be delegated to another individual. The PI or Supervisor must be a U.S. citizen or U.S. permanent resident.

The Purpose of This Certification

The Export Administration Regulations (EAR) (15 CFR 730-774) and the International Traffic in Arms Regulations (ITAR) (22 CFR 120-130) require US persons to seek and receive authorization from the US Government before releasing to foreign persons in the United States controlled technology or technical data. Under both the EAR and the ITAR, release of controlled technology or technical data to foreign persons in the United States – even by an employer – is deemed to be an export to that person’s country or countries of nationality. One implication of this rule is that a US company must seek and receive a license from the US Government before it releases controlled technology or technical data to its nonimmigrant workers employed as H-1B, L-1, or O-1A beneficiaries. [Excerpt from the USCIS Form I-129 Instructions, available at http://www.uscis.gov/i-129.]

In order for the University of Hawai’i (UH) or the Research Corporation of the University of Hawai’i (RCUH) to file an H-1B or O-1 petition on behalf of a Beneficiary, an employer must certify that it (1) has reviewed the EAR and ITAR, (2) has determined whether it will require a US government export license to release the controlled item, technology or technical data to the employee Beneficiary, and (3) will not provide access to the item, technology or technical data to the Beneficiary if a license is required until it has received US Government authorization.