Complying With U.S. Export Control And Immigration And Anti-Discrimination Laws

The intersection of immigration, anti-discrimination, and U.S. export control laws can be confusing for employers. But recent, recent settlement agreements between the U.S. Department of Justice (“DOJ”), multinational corporations, and large international law firms demonstrate that the DOJ will not tolerate employers discriminating against non-U.S. persons. This article will provide an overview of the intersection, and friction between, U.S. immigration, anti-discrimination, and export control laws and regulations.

Export Control Laws

The International Traffic of Arms Regulations the (“ITAR”) (administered by the U.S. Department of State, Directorate of Defense Trade Controls (“DDTC”)) and the Export Administration Regulations (“EAR”) (administered by the U.S. Department of Commerce, Bureau of Industry and Security (“BIS”)) are the primary export control regimes in the United States.

Both the ITAR and EAR may require that an export license be obtained from DDTC or BIS, respectively, before the release of export-controlled technical data or technology to a “foreign person.” 1 A release of technical data or technology (whether oral/visual disclosure or provision of physical document or materials) may include virtually any exchange of information - including in person discussion, telephone conversations, technical proposals, fax communications, e-mails and other electronic communications, the sharing of computer databases, briefings, or training sessions.

The release of technical data or technology to a foreign person that occurs within the United States is “deemed” to be an export to the foreign person's “home country,” and whether an export license is required for a particular release may depend on both the nature of export controls applicable to the technology or technical data (including whether it is subject to the ITAR or EAR) as well as the citizenship of the foreign person.

When a foreign person is a national of more than one country, BIS will only consider the last country of citizenship or permanent residence in determining nationality under the EAR. However, for ITAR compliance purposes, DDTC will consider all countries of citizenship and permanent residence.

Under the export control regulations, a “U.S. person”2 is someone who is: 1) a U.S. citizen (whether born or naturalized); 2) a lawful permanent resident of the United States (e.g., “green card” holders); or 3) a protected individual as defined by 8 U.S.C. § 1324b(a)(3) (e.g., foreign persons such as refugees and asylees who are protected persons and considered U.S. persons for export control purposes). Corporations incorporated in the United States are U.S. persons for purposes of the ITAR and EAR. Moreover, the export control regulations defineforeign person3 to mean any person who is not aU.S. person as defined above. Generally, this means any foreign person in a foreign country, or any foreign person in the United States on a temporary work visa (e.g., H-1B, L-1, TN, etc.) who does not have lawful permanent resident status (e.g., a green card) or who has not been admitted to the United States as a refugee or asylee.Foreign person also includes foreign...