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Deemed Export
Our Chicago immigration lawyers can help you in all aspects of sponsoring foreign employees to work in the United States. The USCIS requires petitioners to certify that the employer's technology will not be subject to the "deemed export" rule. An export of technology or source code (except encryption source code) is "deemed" to take place when it is released to a foreign national within the United States. The Bureau of Industry and Security is responsible for issuing “deemed export” licenses for the release to foreign persons of Export Administration Regulations controlled technology.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.
Generally, technologies subject to the Export Administration Regulations are those which are in the United States or of U.S. origin, in whole or in part. Most are proprietary. Technologies which tend to require licensing for transfer to foreign nationals are also dual-use (i.e., have both civil and military applications) and are subject to one or more control regimes, such as National Security, Nuclear Proliferation, Missile Technology, or Chemical and Biological Warfare.
Some technologies are under the exclusive jurisdiction of another agency of the U.S. government and are not subject to the EAR. These include defense services which are under the jurisdiction of the State Department and technology related to the production of special nuclear materials which is under the jurisdiction of the Energy Department.
Still other technologies do not require any authorization because they are already "publicly available." These include patent applications; publicly available technology and software (other than software and technology controlled as encryption items) that are already published or will be published; technology which arises during or as a result of fundamental research; or technology which is educational.
The Directorate of Defense Trade Control is responsible for issuing export licenses and authorizations for the release of International Traffic in Arms Regulations controlled technical data to foreign nationals in the United States.
The employers must check both, the Export Administration Regulations and the International Traffic in Arms Regulations prior to filing a petition for a non-immigrant worker.
