Universities conducting research face several export controls issues. In particular, U.S. regulations target the information and technology universities share with non-citizens. Universities should maintain internal procedures for preventing the unauthorized “deemed export” of certain technologies to foreign individuals. Thomsen and Burke LLP assists universities with the development of compliance programs, training employees and researchers, and navigating the regulatory licensing and filing process.
Under the Export Administration Regulations, a release of technology to a person who is neither an American citizen nor a “protected individual” is considered (or deemed) to be an export to the home country of the foreign national. A release of technology may occur in the ordinary course of employment. For example, visual inspection of U.S.-origin equipment or facilities, oral exchanges of information, or access to technology or source code on computer networks would constitute so-called “deemed exports” to the foreign national’s home country. Depending on the foreign national’s home country and the type of technology that the foreign national will use in the ordinary course of employment, we may have to obtain an export license from the Department of Commerce’s Bureau of Industry and Security in order to grant the foreign national access to the controlled technology. People who are “protected individuals” under the Immigration and Naturalization Act may be treated like American citizens. Release of technology to a protected individual DOES NOT trigger the deemed export rule. Protected individuals include people who are entitled to permanent residency in the United States (holders of Form I-551, sometimes referred to as “green cards”). People who have been granted refugee status or political asylum in the United States also may be treated like American citizens. On the other hand, any person who has a temporary visa issued by the Immigration and Naturalization Service and a defined work authorization issued by the Department of Labor DOES trigger the deemed export rule. This includes any person who has any kind of temporary visa, like an H-1B visa.
For more information, please contact Roz Thomsen.