Deemed export

Under EAR and ITAR, a transfer of controlled technology to a foreign national constitutes a deemed export, requiring an export licence in many cases unless an exemption applies. Common deemed-export scenarios in research include access by foreign graduate students, postdoctoral researchers, or visiting scholars to controlled technical data or laboratory equipment. Institutions manage deemed-export risk through technology control plans, segregated lab access, and visa-based review.

Regulatory basis

The EAR’s deemed-export rule (15 CFR 734.13(a)(2)) defines the release of controlled technology or source code to a foreign national — anywhere, including entirely within the United States — as deemed to be an export to that individual’s most recent country of citizenship or permanent residency. ITAR’s parallel mechanism is its broad definition of “release” of technical data (22 CFR 120.17), which likewise treats disclosure to a foreign person in the US the same as sending the same information abroad. Both regimes are triggered by the act of disclosure or access, not by an item physically crossing a border — a foreign national reading a controlled document, viewing controlled equipment’s internal design, or being briefed on a controlled process, all without anything ever leaving the building, can each independently trigger a deemed export.

Common deemed-export triggers in a research setting

Beyond direct access to controlled technical data, deemed-export risk in a university lab commonly arises from: hands-on operation of, or detailed technical instruction on, export-controlled equipment; oral briefings or lab tours that disclose controlled design or process information; and remote or electronic access (shared drives, lab notebooks, source code repositories) that a foreign national can reach even without being physically present. “Foreign national” for this purpose means anyone who is not a US citizen, US lawful permanent resident, or a person granted protected status (e.g. asylee/refugee) — not simply anyone born outside the US who now holds US citizenship or a green card.

The fundamental research exclusion has real limits

The fundamental research exclusion — which generally keeps EAR/ITAR from applying to basic and applied research intended for open publication, with no restrictions on participation or publication — is often misunderstood as a blanket shield. It is not: the exclusion covers the research information and its openly published results, but does not extend to the underlying controlled equipment, software, or technology used to conduct that research. A project that accepts a sponsor’s publication-restriction or foreign-national-access-restriction clause can also lose the exclusion’s protection entirely for the affected work, even if the research itself is otherwise unclassified and intended for publication.

Managing the risk

Institutions manage deemed-export exposure primarily through a written Technology Control Plan (TCP) naming the specific controlled technology, listing every authorised individual by name and citizenship, and setting out physical, IT, and administrative safeguards — combined with restricted-party screening, segregated lab access, and advance visa/immigration-status review before granting a foreign national access to controlled equipment or data.

References

• EAR 15 CFR 734.13; ITAR 22 CFR 120.17.

Related: Technology Control Plan (TCP) · ECCN (Export Control Classification Number) · ITAR and EAR · Export-controlled research · ITAR and EAR Compliance for University Research.

Checking this against the current guidance

Whether a specific disclosure counts as a deemed export depends on the technology’s classification and the recipient’s status, not their country of origin alone. The answer depends on which technology classification you are working to,
and the page above states the general rule.

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Frequently asked questions

Does a green card holder count as a foreign national for deemed-export purposes?

No — a lawful permanent resident (green card holder) is treated as a US person under EAR and ITAR, so a disclosure to them is not a deemed export, unlike a disclosure to someone on a visa or with no US immigration status.

Does the fundamental research exclusion remove the need to screen anyone?

No — the exclusion protects the research results and information once the research qualifies as fundamental research, but institutions still typically screen lab access and technology transfer separately, since the exclusion can be lost if publication restrictions or access controls are added later.

Can a deemed export happen without any physical transfer of equipment?

Yes — a deemed export occurs on the release of controlled technology or technical data to a foreign national, which includes visual inspection, verbal disclosure, or lab training, not only the physical transfer of an item.

Who at an institution typically makes the deemed-export determination?

Usually the export control officer or empowered official, working from the technology’s classification and the individual’s immigration status — not the PI alone, since a wrong determination carries institutional licensing risk.