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Export Control Guidance Topics - "Deemed" Exports

Export Control Guidance Topics

Overview

Rutgers Export Control will provide a Deemed Export Certification review to determine if an export license is required. This review is required by the United States Citizenship and Immigration Services and is part of the visa approval process managed by the Rutgers Global Office. Common visas requiring Deemed Export Certification include non-immigrant visa: H-1B, O-1, TN, E.

***Not required for F-1 and J-1 Visas.

  • The obligation to obtain an export license from the US Government (BIS) before “releasing” controlled technology to a foreign person is informally referred to as a “deemed export”. Releases of controlled technology to foreign persons in the U.S. are "deemed" (EAR 734.13:b) to be an export to the person’s country or countries of nationality. Note that those organizations having persons with permanent residence status, U.S. citizenship, and persons granted status as "protected individuals" are exempt from the “deemed” export rule.

    Many of the licenses for "deemed” exports involve those conducting scientific research. Note that under section 734.8 of the EAR, fundamental research is defined as "basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community" and, as such, is exempt from EAR licensing requirements. Research conducted using publicly available information is also exempt from any license requirements. 

    EAR defines a "release" of "technology" or source code in section 734.15 of the EAR and defines activities that are not "deemed" re-exports in section 734.20 of the EAR. ITAR does not use the term “deemed export” as is used under the Commerce Department regulations, but the concept is the same under both the EAR and ITAR.

  • Deemed Re-Export: A deemed re-export occurs when controlled technology or source code is released to a foreign national in a third country whether by a U.S. person or a foreign person, §734.2(b)(5). For example, an organization in the UK receives technology from the USA. Then it plans to use that technology in their product which they want to sell to Cuba. The company would need to apply for an export license in order to be allowed to sell the item to Cuba under the terms they agreed to when receiving the technology originally from the USA. A dual national employee is one who is a citizen or national of the country of his employer and also a citizen or national of another country – other than the United States. A third-country national employee is one who is a citizen or national of a country that is not the United States or the country of his employer.   

    Release: Technology is released for export when it is made available to foreign nationals for visual inspection in such forms as technical specifications, plans, blueprints, etc., through electronic media or even by simple visual inspection; when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. 

    "Technology" is specific information necessary for the "development," "production," or "use" of a product.  

    US Residents (US Person, Foreign National, etc), visit the Rutgers International Collaboration guidance webpage.