Foreign Nationals and Deemed Exports

A U.S. person is defined as a U.S. citizen, a permanent resident (i.e., green card holder), or an individual who is granted status as a “protected person” (8 U.S.C. 1324b(a)(3)). A foreign national refers to anyone who is not a U.S. person. A deemed export is the release of technology or technical data to any foreign national in the U.S., including students, post-docs, faculty, visiting scientists, or training fellows. A deemed export is treated as an export to that person’s home country.

In general, the terms technology and technical data mean specific information necessary for the development, production, or use of a commodity, and usually takes the form of blueprints, drawings, photographs, plans, diagrams, models, formulae, tables, engineering specifications, and documentation. It generally does not include basic marketing info on function, purpose or general descriptions of defense articles.

For the most part, technology or technical data that is publicly available does not require a license to export. In other words, information that arises through fundamental research where the information is ordinarily published is not subject to the regulation. However, information or technology received through an NDA that is not considered publicly available would be subject to export control regulations. 

Technology is “released” for export when:

• it is available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.);
• technology is exchanged orally; or
• technology is made available by practice or application under the guidance of persons with knowledge of the technology.

While the International Traffic in Arms Regulations (ITAR) do not incorporate the term “deemed export,” the concept is in the definition of an export and pertains to the release of ITAR technical data and defense services.