The U.S. Department of Commerce has issued an informal advisory opinion on the applicability of the "deemed export" provisions of the Export Administration Regulations (EAR) where foreign nationals work at a third party client site pursuant to a contract between a staffing company and a third party client. In the scenario cited by the Department of Commerce, where the staffing company has control over the employment of the foreign national but does not have control over technology or source code that is provided to the foreign national by the third party client, the third party client is required to obtain authorization for a deemed export that might occur when the third party client provides the foreign national with access to technology or source code subject to the EAR.

The Department of Commerce's position is based on the understanding that the third party client in such a scenario is the exporter because it is making the release of EAR-subject technology to the foreign national.

Despite this clarification, the Department of Commerce cautions that staffing companies and their clients should be aware that the employer in an H-1B, H-1B1 Chile/Singapore, L-1 or O-1A petition is required to provide a certification regarding the release of controlled technology or technical data subject to the EAR or the International Traffic in Arms Regulations. Such employers should therefore take appropriate steps to ensure that its representations on USCIS Form I-129 (Petition for a Nonimmigrant Worker) are accurate.