Deemed Exports Guidelines Updated

BIS has recently updated its Guidelines for Preparing Export License Applications Involving Foreign Persons (Deemed Exports/Reexports).  

Licenses are required for the release of controlled “technology” or “source code” to a foreign person only if a license is required for the export (or reexport) of such items to that foreign person’s most recent country of citizenship or permanent residency (Certain license exceptions may apply.)

Deemed exports are most often encountered in the employment context however, this guidance also addresses license submission requirements related to releases of controlled “technology” and “source code” to foreign persons in other contexts, such as foreign students participating in collaborative research when there are restrictions on publication or foreign students participating in curricular practical training (CPT) or optional practical training (OPT).

Deemed export license requirements do not apply to the release of “technology” or “source code” to persons lawfully admitted for permanent residence in the United States or persons who are “protected individuals” as defined under the Immigration and Naturalization Act.

The basic guidance for filling out license applications is set forth in Supplement 1 to part 748 of the EAR.  The guidance published today is to ensure applications provide all information and formatting to ensure timely review.

Basic Requirements

Documentation required for deemed export or deemed reexport licenses:

• Legible copies of passport, visa, and work authorization (or equivalent for deemed reexport). 
• Letter of Explanation (LOE) 
• Resume
• Technology Control Plan (TCP) 

Incuded are block-by-block instructions for submitting the materials, as well as format and content guidance for the Letter of Explanation and Resume/CV elements.

BIS’s policy is to approve deemed export license applications provided: 

1.  there is no unacceptable risk that the items in question will be diverted to  unauthorized uses or users; and 
2. the applicant agrees to comply with the applicable conditions on the license. 

The standard condition(s) set forth in this attachment cover “technology” and “source code” pertaining to items listed on the Commerce Control List. BIS may attach these and other conditions to a license when approved. 

The full set of guidelines can be found at 

https://www.bis.gov/media/documents/deemed-exports-licensing-guidelines-foreign-persons