New GAIN AI Act Mandates 'Right of First Refusal' for US Buyers on High-Performance AI Chips Exported Abroad

If you thought buying a new car was complicated, wait until you hear about the new rules for buying the advanced chips that power AI. The Guaranteeing Access and Innovation for National Artificial Intelligence Act of 2025 (GAIN AI Act) is a massive overhaul of how the U.S. handles the export of cutting-edge semiconductors—the kind used for everything from massive data centers to advanced weapons systems. Simply put, this bill says that before manufacturers can ship these powerful chips (defined by highly technical performance metrics like ECCNs 3A090 or 4A090) to specific countries, they must give U.S. customers first dibs.

This isn't just about slowing down technology transfer; it’s about prioritizing domestic access and production capacity. The legislation targets countries designated as a “Country of Concern,” which includes China, Hong Kong, and Macau. If a company wants to export a covered circuit to an entity in one of those places, they need a license, and that license requires a detailed certification that effectively puts American buyers first.

The All-New 'Right of First Refusal'

For tech manufacturers, this certification process is going to be a heavy lift. Before even applying for an export license, the manufacturer must certify that they provided a right of first refusal to U.S. persons. This means they have to post a public notice offering the chips and give U.S. buyers at least 15 business days to inquire and request to purchase. If a U.S. person requests the chips within that window and takes steps to complete the purchase, they get preference over the foreign buyer.

But the requirements don't stop there. The manufacturer also has to certify two major things about their production pipeline: first, that they have no current backlog of requests from U.S. persons for the same or comparable circuits; and second, that they cannot “reasonably foresee” the export creating a backlog or reducing critical production capacity for U.S. customers within the next 12 months. If they can't submit this certification, the license application must be denied. For the average person, this means that if you’re a U.S. tech company or even a researcher needing these advanced chips, the law is explicitly designed to ensure you get them before they go overseas, potentially stabilizing supply chains for domestic innovation.

Who Gets to Be 'Trusted'?

Recognizing that these controls could create friction for U.S. companies operating globally, the bill introduces an Exemption for Trusted United States Persons. If you’re a U.S. company that meets a specific set of security and ownership criteria, you can be designated as “trusted” by the Under Secretary of Commerce. This designation allows you to move these advanced circuits around the world without needing a license, as long as the chips remain under your ownership and control and the destination is not a Country of Concern.

However, earning that “trusted” badge comes with intense scrutiny. To qualify, a company must meet strict requirements for physical security and cybersecurity, and perhaps most importantly, no more than 10 percent of the ultimate beneficial ownership can be held by any entity primarily based in a Country of Concern. Furthermore, the company cannot transfer or install a majority of its processing power outside the U.S., and there’s a preference for sourcing circuits from U.S. manufacturing facilities. This is clearly aimed at ensuring that companies handling the most sensitive tech are primarily U.S.-focused and insulated from foreign influence, but it could severely impact U.S. companies with significant international investment or operations.

The Real-World Friction

While the goal of securing U.S. access and preventing technology leakage is clear, the implementation of this Act is where things get complicated. For chip manufacturers, the new “right of first refusal” adds significant transactional friction—a mandatory 15-day waiting period and public notice requirements for every major export deal. This delay could make U.S. suppliers less attractive to international buyers who need speed and certainty.

More concerning is the highly subjective nature of the backlog certification. How does a company “reasonably foresee” what its production capacity will look like 12 months from now? This provision grants significant, potentially subjective power to the Under Secretary to deny export licenses based on future projections, creating a potential minefield for compliance. In short, the GAIN AI Act dramatically shifts the balance of power, prioritizing U.S. buyers and national security over the free flow of commerce in the most critical technology sector, but at the cost of significantly increased regulatory burden and market complexity for the companies making the chips.