EXPORT CONTROLS | 2026-09-30

Deemed Exports: When Hiring a Foreign National Can Require an Export License

Under the Export Administration Regulations, releasing controlled technology to a foreign national inside the United States counts as an “export” to their home country — and may require a license before they ever see the data.

Most people think an “export” means shipping a product across a border. But U.S. export-control law reaches something far less obvious — and far more common in California’s technology, aerospace, and research sectors. Under the <strong>Export Administration Regulations (EAR)</strong>, releasing <str

An export can happen without anything leaving the country — just by letting the wrong person see controlled technology.

What a Deemed Export Is

Under the EAR, an export of technology or source code includes releasing it to a foreign person — even within the United States. Such a release is “deemed” to be an export to the foreign person’s most recent country of citizenship or permanent residency. In other words, giving a foreign national access to controlled technology in a lab, an office, or over a company network is legally equivalent to shipping that technology to their home country — and may require the same license.

What Counts as a “Release”

A release of technology can occur in many ordinary ways, including:

Visual inspection of controlled technology or equipment by a foreign national;
Oral or written exchanges of controlled technical information;
Providing access to controlled data on a network, server, or shared drive; and
Training or application of controlled technology in the foreign national’s presence.

Because these activities are routine in workplaces and laboratories, a deemed export can occur without anyone realizing an “export” has taken place.

When a License Is Required

A deemed export requires a license only when an actual export of that technology to the foreign national’s country would require a license. The analysis therefore proceeds in steps:

Classify the technology. Determine the technology’s classification under the Commerce Control List (its Export Control Classification Number, or ECCN), or whether it is EAR99.
Identify the reason for control and the country. Determine whether the ECCN’s reasons for control require a license for the foreign national’s country.
Assess the person. Determine the foreign national’s country of citizenship or permanent residency, and whether any license exception applies.

If an export to that country would require a license, then releasing the technology to that foreign national generally requires a deemed export license from the Bureau of Industry and Security (BIS) first.

Who Is a “Foreign Person”

The rule turns on the recipient’s status. U.S. citizens and lawful permanent residents (green-card holders), and certain protected individuals, are generally not foreign persons for these purposes, so releases to them do not trigger the deemed export rule. The rule focuses on other foreign nationals — for example, many employees or researchers present on temporary visas. Getting this determination right is central to compliance.

Common Settings Where It Arises

Deemed export issues frequently arise for:

Technology and aerospace companies employing foreign-national engineers who work with controlled technology;
Universities and research institutions, where the “fundamental research” exclusion may apply to much published research but not to controlled proprietary or restricted work;
Manufacturers whose processes or specifications are controlled; and
Any employer giving foreign-national staff access to controlled technical data on internal systems.

Compliance and Consequences

Failing to obtain a required deemed export license is a violation of the EAR, which can carry substantial civil and criminal penalties, denial of export privileges, and reputational harm. Sound compliance includes technology classification, screening of foreign-national access, use of technology control plans to segregate controlled data, and, where required, applying for deemed export licenses. Building these controls before granting access — not after — is the key to avoiding inadvertent violations.

Why It Matters for California Employers

California’s innovation economy depends on global talent, and much of the technology that talent works with is export-controlled. The deemed export rule means that hiring and onboarding decisions, network access, and lab access all carry export-control implications. Recognizing when a release requires a license — before it happens — protects both the company and its employees.

Frequently Asked Questions

What is a deemed export?

Releasing controlled technology or source code to a foreign national within the U.S., which the EAR treats as an export to that person’s home country.

How can an export happen without shipping anything?

Because giving a foreign national access to controlled technology — visually, orally, or electronically — is itself a release, and thus a deemed export.

When is a license required?

When an actual export of the technology to the foreign national’s country would require a license — determined by classifying the technology and assessing the country and person.

Who is a foreign person?

Generally, someone who is not a U.S. citizen, lawful permanent resident, or protected individual; the rule focuses on other foreign nationals.

Where does this come up most?

In technology, aerospace, and manufacturing companies and research institutions employing foreign nationals who access controlled technology.

What are the consequences of getting it wrong?

Violations of the EAR can carry substantial civil and criminal penalties and loss of export privileges.

Related Customs & Trade Guides

Talk to an Export Controls Attorney

If your company employs foreign nationals who work with controlled technology, the deemed export rule may require a license before access. Trembach Law Firm advises California employers and institutions. Call (818) 514-7680.

Contact Trembach Law Firm at (818) 514-7680 for a confidential consultation.

Trembach Law Firm | 27001 Agoura Road, Suite 350, Calabasas, CA 91301