Before sharing any export controlled items or information with a foreign person employee (whether they are employed by your laboratory, department or a university business office) you need to make sure that you do not need an export license.
A "deemed export" is an export of technology or source code (except encryption source code) to a foreign person within the United States.
How can a Deemed Export Occur?
The Export Administration Regulations (EAR) §734.2(b)(2) states that Technology is ‘released’ for export when it is made available to foreign person by:
- visual inspection (such as reading technical specifications, plans, blueprints, etc.); or
- exchanged orally; or
- by practice or application under the guidance of persons with knowledge of the technology.
The International Traffic in Arms Regulations (ITAR) does not incorporate the term “deemed export” but the concept is in the definition of an export and pertains to the release of ITAR technical data and defense services.
Can Sharing Third Party Proprietary Data be a Deemed Export?
It is important to determine if there is an export issue where third party proprietary data or source code will be shared - this includes vendor technical data (specs, blueprints, etc). Third party proprietary information and source code may be export controlled and the release may constitute a deemed export.
I Want to Share Export Controlled Information - What Should I Do?
If you are receiving export controlled information (or just found out that you have export controlled information) you should contact the Export Compliance Officer for a technology control plan (TCP). Part of the TCP will discuss the review process to share the information.
ITAR Controlled Items
It is important to determine if the foreign national employee will have access to any ITAR controlled equipment, materials, software or technical data. These activities will require a license and/or properly documented license exception as well as a technology control plan.
Employees I129 Export Attestation Requirement
Form I-129 requires an Export Attestation for a foreign person on an H-1B, H-1B1 Chile, Singapore, L-1 or O-1A visa petition, as follows:
With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:
- A license is not required from either the US Department of Commerce or the US Department of State to release such technology or technical data to the foreign person; or
- A license is required from the US Department of Commerce or the US Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.