What Is a Deemed Export under the EAR?

A deemed export is the release of controlled technology or source code to a foreign person inside the United States, and it is treated as an export to that person's most recent country of citizenship or permanent residency (15 CFR 734.13(a)(2) and (b)). An employer must obtain any license the Export Administration Regulations (EAR) would require for an export to that country before the release.

What counts as a release. Technology or source code is released when a foreign person inspects it visually or in another way that reveals it, or when it is shared through oral or written exchanges (15 CFR 734.15(a)). A license is required for a release to the same extent it would be for an export or reexport (15 CFR 734.15(b)). The deemed export rule covers technology and source code, but not object code (15 CFR 734.13(a)(2)).

Who is a foreign person. Under the EAR, a foreign person is anyone who is not a U.S. citizen, a lawful permanent resident or a protected individual under 8 U.S.C. 1324b(a)(3) (15 CFR 772.1). Companies not incorporated or organized to do business in the United States, international organizations and foreign governments are also foreign persons.

Workplace effect. The rule matters when an employer hires or hosts a foreign national who will see or discuss controlled technology at work. Information and software are not subject to the EAR when they are published (15 CFR 734.7), arise during or result from fundamental research (15 CFR 734.8), are released by instruction in a catalog course or associated teaching laboratory of an academic institution, appear in patents or open patent applications, are non-proprietary system descriptions or are certain telemetry data (15 CFR 734.3(b)(3)).

Hiring paperwork. Employers that sponsor certain visas must also certify their export review on the USCIS petition, covered in the FAQ on the Form I-129 export control certification.

Enforcement. Recent BIS actions are described in the news posts on the export denial order against Arthur Gau and the removal of a Turkish entity from the Entity List. The FAQ on what compliance training is describes compliance training in general.