Technology and Export Law

• Author: Charles M. Miller/Daniel Brown/Marcine Anne Seid
• Profession: Founding partner of the Miller Law Offices, Studio City, California/Partner in Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C./Principal attorney of the Seid Law Group, Palo Alto, California
• Pages: 61-67

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3.01 INTRODUCTION

All U.S. employers are required to comply with foreign export control laws as set forth in

the Export Administration Regulation (EAR)1 and International Trafc in Arms Regula-

tion (ITAR).2 An employer may violate foreign export control laws if certain technology,

software, and information is exported to a foreign country or released to a foreign national

within the United States unless a license can be obtained.3

3.02 DEEMED EXPORT RULE

Under the EAR, an export is dened as an actual shipment or transmission of items subject

to the EAR if it leaves the United States and goes to a foreign country. Also, an export

can be a release of items subject to the EAR to a foreign person within the United States.4

Although the item subject to the EAR does not physically leave the United States, the release

of an EAR- subject technology to a foreign national within the United States is deemed to

be an export to the home country or countries of the foreign national.5 Therefore, employ-

ers that hire foreign nationals within the United States must have an understanding of the

“deemed export” rule and take measures to prevent the export of EAR- controlled items,

technology, or software or to obtain the necessary export licenses from the Bureau of

Industry and Security (BIS).6

1. 15 C.F.R § 734.

2. 58 Fed. Reg. 39283 (July 22, 1993).

3. 15 C.F.R § 734.

4. 15 C.F.R § 734.2(b).

5. 15 C.F.R. § 734.2(b)(3)(i).

6. B  I  S (BIS), https://bis.doc.gov.

Technology

and Export Law