U.S. export control requirements
Under the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR), the release of certain technical data or controlled technology to foreign persons is considered a “deemed export” and may require a license from the Directorate of Defense Trade Controls (DDTC) or the Bureau of Industry and Security (BIS). This applies even if the release occurs within the United States. Under the ITAR and EAR, a foreign person is a person who is not a U.S. citizen, lawful permanent resident, or protected individual (i.e., refugee or person granted asylum). Generally, U.S. visa holders are considered foreign persons.
To comply with U.S. export controls, U.S. employers need to (1) determine whether a potential employee is a foreign person, (2) assess whether a position requires access to ITAR-controlled technical data or EAR-controlled technology, and (3) ensure the required export authorizations or technology control plans are in place to prevent unauthorized exports.
Despite those export control requirements, the DOJ’s new guidance clarifies that the ITAR and EAR do not contain employment or hiring requirements and that using those requirements as a basis for making hiring, firing, or recruiting decisions based on workers’ citizenship, immigration status, or national origin is illegal. Under federal immigration requirements, employers must ensure that employees are legally authorized to work in the United States by properly completing Form I-9 for each individual they hire to work in the United States. Additionally, employers are prohibited from discriminating against employees or applicants on the basis of national origin or citizenship in hiring, recruiting, or termination decisions or from engaging in unfair documentary practices with respect to Form I-9 completion.
To avoid discrimination or unfair documentary practices, the DOJ’s new guidance reiterates that the Form I-9 verification process and export control compliance efforts must be kept separate. In particular, during the Form I-9 process, an employer should not specify it will only accept a certain type of document. Instead, the employer must accept any valid document on the I-9 List of Acceptable Documents. In other words, employers cannot use export control compliance measures to specify what type of documents an employee may present for Form I-9 purposes. Employers should also store Form I-9s and any copies of documents related to that process entirely separate from other employee files or export compliance documents. The DOJ’s new guidance also emphasizes that employers should not include any citizenship, immigration status, or national origin requirement or preference in job postings or in the recruiting or hiring process.
Best practices for avoiding discrimination
Overall, to avoid unlawful discrimination or unfair documentary practices, employers should utilize a two-step process: (1) verify a potential employee’s work eligibility by using Form I-9; and then (2) independent of that Form I-9 process, determine whether a potential employee is a foreign person, whether an export license is required from DDTC or BIS, and what compliance measures will need to be implemented to prevent unauthorized exports. Amidst these separate processes, employers should also consider the following best practices:
- Do not make hiring, firing, or recruiting decisions based on citizenship, immigration status, or national origin.
- Ensure that the Form I-9 completion process is conducted fairly and in a consistent way regardless of an individual’s citizenship, immigration status, or national origin.
- When completing Form I-9, do not request or accept more documentation than is required.
- Do not include specific citizenship, immigration status, or national origin requirements or preferences in job postings.
- Do not use export control requirements as reasons to limit job candidates on the basis of citizenship, immigration status, or national origin. If a position may require an export license to access certain items or data, employers can condition an offer on the ability to secure a license from DDTC or BIS, if one is required, but should ensure that conditions and requirements are no broader than these requirements.
In light of the DOJ’s guidance, employers should re-evaluate their practices to ensure compliance. If you have any questions on this development, need assistance developing policies and procedures to comply with these requirements, or have other questions regarding these requirements, please contact the Reed Smith lawyer with whom you normally work.
Client Alert 2023-097