Export Control: International Visitors, Students, and Researchers on Campus
The University proudly hosts over thousands of international students and scholars from many different nations across the world. UC Berkeley is committed to enhancing the international character of the University while providing professional expertise and support to aid in compliance with U.S. laws and regulations.
Whenever you are planning to have a foreign visitor participate in your research, laboratory, course, training or other activity, there are three general questions to take into consideration prior to the visit to guide you in evaluating the export compliance risk involved:
- From what country or institution is the foreign national?
- To what research, technology, and information will the foreign national have access?
- To what locations will the foreign national have access while at Berkeley?
Depending on the answers to these questions, Restricted Party Screening (RPS) and/or an export license may be required before the foreign national may join in the export controlled activity. Export controls might also be implicated even in instances of short term visits (e.g., inviting foreign national visitors to tour your research lab or University facilities, or to participate in training).
Finally, scholars and researchers who visit UC Berkeley as part of a collaboration must be restricted from accessing laboratories wherein ITAR items or export restricted data are kept or used. A technology control plan may be an option to document the access restrictions and controls implemented to prevent unlicensed exports for foreign persons.
The “Deemed Export” Rule
Export regulations govern the transmission or overseas shipment of certain technology, commodities, or software. These regulations also control the transmission of the same technology, commodities, or software, when shared with a foreign national on U.S. soil. The term “foreign national” refers to everyone other than a U.S. citizen, a permanent resident alien, or certain protected individuals such as refugees and those with asylum. The EAR and ITAR regulations state that a transfer of technology or technical data to a foreign person is deemed to be an export to the home country of the foreign person. This is referred to as a “deemed export.”
Even a discussion with a foreign researcher or student in a campus laboratory is considered a “deemed export.” Export controls preclude the participation of all foreign nationals in research that involves restricted technology without first obtaining a license or license exception from the appropriate government agency.
Export Control Requirements for Foreign National Participation in University Activities
There are three principal exclusions that allow foreign national participation without requiring a license:
- Public Domain / Publicly Available Information (i.e., materials available in journals, newspapers, libraries, or presented at publicly available conferences; publicly available technology or software; websites accessible to the public for free and without the host’s knowledge or control of who visits the site; and published patents);
- Educational Information (i.e., “information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities,” and information by “instruction of a catalog course or associated teaching laboratory of an academic institution”); and
- Fundamental Research (i.e., basic or applied research in science, mathematics and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, and for which the researchers have not accepted restrictions for proprietary or national security reasons).
Thus, generally speaking, the export control regulations permit U.S. universities to allow foreign nationals (e.g., students, faculty, academic appointees, and non-employee participants in University programs) to participate in fundamental research projects without securing a license, provided there are no controls on publication or access restrictions. We may also share with foreign nationals in the U.S. or abroad “‘technology’ or ‘software’ that arises during, or results from, fundamental research and is intended to be published.” This carve-out is known as the Fundamental Research Exclusion, or the FRE. The export control regulations also permit U.S. universities to release information by instruction (educational information), also without securing a license.
However, it is important to note that even in the conduct of fundamental research and instruction, an export control license may be required if the project involves a Non-Disclosure Agreement (NDA) covering the exchange of export-controlled information, access to export-controlled technology, a non-research function (e.g., a service agreement) where there is access to export-controlled technology, or access to ITAR-controlled equipment.
Export Control Certification on Visa Applications
UC Berkeley must indicate whether an export license is required for faculty, researchers, or staff the University is filing a U.S. Citizenship and Immigration Services Form I-129 for H-1B or O-1 status. Any departments signing off on the I-129 certifications are responsible for identifying any export restricted technical data or access ITAR equipment or training on that equipment that may be required for the researchers or staff applying for visas.
On this page
Export Control Index
- Export Control
- Restricted Party Screening
- Controlled Technologies Lists
- Export Controlled or Embargoed Countries, Entities, and Persons
- Technology, Technical Data, and Software
- Technology Control Plan
- Frequently Asked Questions