US – BIS posts Guidelines for preparing export license applications involving foreign nationals

Section 734.2(b)(ii) of the Export Administration Regulations (EAR) defines “export” to include a release of technology or software to a foreign national and considers such release to be a “deemed export” to the home country of the foreign national. Licenses are required for release of controlled technology or software to a foreign national only if a license is required for the export of such items to the home country. License applications, when submitted, are reviewed by BIS under the licensing policies that apply to the actual export of the technology or software in question to the country of the foreign national.

The “deemed export” rule is most often encountered in the employment context where a company will release controlled technology or software to a foreign national. The Guidelines are designed for the employment situation, and may not be fully applicable to license applications submitted for releases to foreign nationals in other contexts. It is important to note that the “deemed export” rule does not apply to the release to persons lawfully admitted for permanent residence in the United States, and does not apply to persons who are “protected individuals” under the Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)).

The basis guidance for filling out license applications is set forth in Part 748 of the EAR. The posted Guidelines supplement the basic guidance and are intended to facilitate processing of applications involving the “deemed export” rule. BIS encourages companies to follow the Guidelines to assist BIS in processing license application more efficiently. Due to regulatory time limits for processing license applications, it is in the interest of each exporter to provide all information needed to analyze the transaction when the application is submitted.

Applications under the “deemed export” rule should include the basic information included in the Form BIS-748P (Guidelines Section II), a letter of explanation (Guidelines Section III A), and a resume (Guidelines Section III B).