Exporting from the United States is a privilege, not a right. Like most countries, the United States has laws and regulations governing exports. In some cases, you need a license issued by an agency of the U.S. government, before you can export.
The scope of international trade impacted by U.S. export controls varies widely by country. Almost all products and technologies may be exported to Canada without a license. On the other hand, Cuba is subject to a virtual embargo.
Historically, export controls have been imposed for reasons of national security, foreign policy, and short supply, among others. The most important export control regimes today are:
- “Dual-use” products having both military and civilian applications are controlled under the Export Administration Act and Export Administration Regulations administered by the Department of Commerce’s Bureau of Industry and Security. This includes computers, electronics and telecommunications equipment and software, for example.
- “Defense Articles and Services” are controlled under the Arms Export Control Act and International Traffic in Arms regulations administered by the Department of State’s Office of Defense Trade Controls. This includes not only guns and bombs, but also some products and technologies having civilian uses.
- All trade with certain pariah countries is controlled by the Treasury Department’s Office of Foreign Assets Control under various laws and regulations imposing economic sanctions. Many of these sanctions are country-specifc and include restrictions on transactions involving Cuba, Iran, and Sudan, among others.
A number of other federal agencies play a consultative role with respect to formulation of export control policy and participate in the export licensing process. These include the Arms Control and Disarmament Agency, the Department of Energy, Defense Technology Security Administration, the Federal Bureau of Investigation, and the National Security Agency.
For a comprehensive overview, please refer to United States Export Controls, 7th Edition, by John R. Liebman, Roszel C. Thomsen II, James E. Bartlett III, and John C. Pisa-Relli.
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.