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.);
- 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.
While 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.
Deemed Export Certification (I-129)
The Form I-129 used by employers to petition for H-1B or O-1 visas requires that the employer provide a deemed export license determination for the visa beneficiary.
The UCI International Center will include an I-129 Deemed Export Questionnaire in each I-129 petition packet. The principal investigator who will supervise the visa beneficiary or an individual who is otherwise knowledgeable about the beneficiary's intended work should complete and return the questionnaire to the Export Control Officer.
The Export Control Officer will review the information provided and determine whether a deemed license is required to employ the beneficiary at UCI. Once a determination is made, the UCI International Center will submit a Form I-129 to U.S. Citizenship and Immigration Services.
The I-129 Deemed Export Questionnaire
This form is used to assess an H1-B beneficiary’s export licensing requirements during their period of employment at UCI.