Deemed Export
The release or disclosure of controlled technology or source code to a foreign national in the United States, which is legally treated as an export to that person's home country.
Definition
A deemed export occurs when technology or source code subject to export control regulations is released or disclosed to a foreign national within the United States. Under both the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), such a disclosure is treated — or "deemed" — as an export to the foreign national's most recent country of citizenship or permanent residence, and may require an export license or other authorization.
How a Deemed Export Works
Under the EAR, a deemed export occurs when technology or source code is "released" to a foreign national in the United States. Release can take many forms: visual inspection of technology, oral briefings about controlled processes, access to technical documents, or hands-on use of controlled equipment. The nationality of the individual — not their physical location — determines whether a deemed export has occurred.
Under ITAR, the concept is similar: releasing ITAR-controlled technical data to a foreign person in the United States is treated as an export to that person's home country. For ITAR purposes, "foreign person" means anyone who is not a U.S. citizen, lawful permanent resident, protected refugee, or asylee.
Which Foreign Nationals Trigger Deemed Export Rules?
Under the EAR, deemed export rules apply to foreign nationals — individuals who are not U.S. citizens or lawful permanent residents. This includes employees on work visas (H-1B, L-1, O-1), students, contractors, and visitors.
The nationality used for EAR deemed export analysis is generally the foreign national's most recent country of citizenship or permanent residence. A dual national who holds U.S. citizenship is treated as a U.S. person and does not trigger deemed export rules.
Common Situations That Create Deemed Export Risk
Deemed export issues arise most frequently in technology companies, research universities, and manufacturing environments where foreign nationals work alongside controlled technology. Typical risk scenarios include onboarding a foreign national engineer who will have access to controlled software or technical specifications; hosting a foreign national at a manufacturing facility with controlled equipment; and sending technical documents electronically to a foreign national colleague in the United States.
- Onboarding foreign national employees with access to EAR- or ITAR-controlled technical data
- University research involving controlled technology and international graduate students or researchers
- Manufacturing facilities where foreign national contractors or visitors have access to controlled equipment or specifications
- Sharing controlled source code in a shared development environment accessible to foreign nationals
Restricted Party Screening and Deemed Exports
Restricted party screening applies to deemed exports just as it does to physical exports. Before granting a foreign national access to controlled technology, exporters should screen the individual against U.S. government watchlists — particularly the BIS Entity List, the OFAC SDN List, and the State Department AECA Debarred List. A foreign national who appears on a restricted party list creates compliance exposure that cannot be resolved simply by having the person physically in the United States.
How TradeLasso Helps
TradeLasso can be used to screen foreign national employees, contractors, and visitors against all 13 U.S. government watchlists before granting access to controlled technology — creating a documented record of your deemed export screening program.
Frequently Asked Questions
Does deemed export apply to H-1B visa holders?
Yes. H-1B visa holders are foreign nationals under EAR deemed export rules unless they also hold U.S. citizenship or lawful permanent resident status. Providing an H-1B employee access to EAR-controlled technology may require a deemed export license depending on the ECCN classification of the technology and the employee's nationality.
How does deemed export relate to restricted party screening?
Just as you screen a foreign customer before exporting a product, you should screen a foreign national before granting them access to controlled technology. If the individual appears on the BIS Entity List, the OFAC SDN List, or another U.S. government watchlist, proceeding with access could constitute a violation of U.S. export law. Screening foreign nationals before onboarding them into controlled environments is a standard element of a comprehensive export compliance program.
Does deemed export apply under ITAR as well as the EAR?
Yes. Both regimes have deemed export provisions. Under ITAR, releasing controlled technical data to a foreign person in the United States is treated as an export to their home country. ITAR's definition of "foreign person" is slightly different from the EAR's — under ITAR, a lawful permanent resident is a "U.S. person" and does not trigger deemed export treatment.
Can I use a Technology Control Plan instead of getting a deemed export license?
In some situations, yes. BIS and DDTC have recognized Technology Control Plans (TCPs) — written procedures that restrict foreign national access to controlled technology — as part of license application packages or as a condition for approving deemed export licenses. However, a TCP does not substitute for a license where one is required; it supplements the licensing process and demonstrates due diligence.