A deemed export is the release of technology or source code subject to the Export Administration Regulations (EAR) to a foreign person inside the United States. The EAR treats that release as an export to the person's most recent country of citizenship or permanent residency. Nothing has to cross a border.
For companies and universities with international staff, visitors and partners, deemed exports are one of the most common compliance gaps. For licence applications, see deemed export licences: when you need one and how to apply.
The deemed export rule in § 734.13(b)
Section 734.13(b) of the EAR treats a release of technology or source code to a foreign person in the U.S. as an export to the person's most recent country of citizenship or permanent residency. The same technology may be free to release to a German engineer and require a licence for a colleague whose most recent citizenship is in a Country Group D destination.
What counts as a "release"?
- visual or other inspection that reveals technology, such as a lab tour or a look at drawings;
- oral or written exchanges, such as meetings, emails and training;
- access to files on shared drives, repositories and product lifecycle systems.
Access that is never used can still be a risk, so give foreign persons only the access their role needs. Deemed exports concern technology and source code, and physical items as such are outside the rule. Visitors on a tour trigger a deemed export only if they are shown controlled technology, so plan tours to avoid it.
Who is a foreign person for deemed exports?
U.S. citizens, lawful permanent residents (green card holders) and certain protected individuals, such as refugees and asylees, are not foreign persons for this purpose. Everyone else is, including employees on H-1B, L-1 or O-1 visas, students, interns and visiting researchers.
For dual nationals, the EAR looks at the most recent citizenship or permanent residency. The ITAR rules for dual and third-country nationals are different.
Which technology is affected?
Only technology and source code that are subject to the EAR and controlled for the person's country are affected. The following are outside the EAR entirely:
- published information freely available to the public;
- results of fundamental research intended for publication;
- general scientific and engineering principles taught in universities;
- basic marketing information.
Technology is classified in product group E of the Commerce Control List (for example 3E001 for semiconductor technology and 5E002 for encryption technology) or as EAR99. See CCL product groups A–E.
When is a deemed export licence required?
Classify the technology, then read its reasons for control against the Commerce Country Chart for the person's country. If there is an "X" and no licence exception applies, a deemed export licence is required before release. Deemed export licences are typically applied for through the employer, often alongside the visa process. See how to use the Commerce Country Chart.
A licence covers the technology and the person described, usually with conditions. It does not simply follow the person: a new role or new technology may need a new licence.
A technology control plan for deemed exports
Day-to-day compliance usually rests on a written technology control plan with these parts:
- Inventory controlled technology and where it lives.
- Classify it with an ECCN or as EAR99.
- Screen new hires, visitors and partners for citizenship and residency, and for restricted-party status (see sanctions screening for exporters).
- Control physical and IT access by role, and by nationality where needed.
- License the release where required, before access is given.
- Train staff to recognise releases in conversation and email.
- Record decisions and review them when roles or technology change.
The plan sits within the BIS eight elements of an export compliance program.
ITAR technical data and foreign persons
The ITAR has its own, stricter rules. Sharing technical data for a defense article with a foreign person in the U.S. generally needs DDTC authorisation. See technical data under the ITAR.
Deemed exports and ECCN.help
The first step of any deemed export analysis is classifying the technology. The ECCN.help Classification Workflow classifies technology (product group E) as well as hardware and software. It is rule-based, with no AI, and its licence check reads the result against the Country Chart for the person's country.
ECCN.help provides research and assistance, not legal advice. Verify every result against the regulation.