DOJ Releases Employer Guidance To Avoid Immigration-Related Discrimination When Complying With US Export Control Laws

On April 18, the U.S. Department of Justice (DOJ) Civil Rights Division released an Employer Fact Sheet on how to avoid immigration-related discrimination when complying with U.S. export control laws.

The DOJ’s fact sheet comes on the heels of its announcement of a settlement with General Motors of $365,000 in civil penalties following the DOJ’s determination that the company discriminated against non-U.S. citizens in violation of the Immigration and Nationality Act (INA). DOJ states that GM unlawfully required lawful permanent residents to provide an unexpired foreign passport as a condition of employment and combined its process for verifying workers’ permission to work in the United States with its export compliance assessment.

On the one hand, under the INA, it is generally against the law for employers to make hiring, firing, or recruiting decisions for work-authorized individuals based on workers’ citizenship, immigration status, or national origin. This law also prohibits employers from asking for more documents than necessary or specific documents when checking an employee’s permission to work because of citizenship, immigration status or national origin. Federal law allows workers to choose which valid, legally acceptable documentation to present to demonstrate their identity and permission to work, regardless of citizenship, immigration status or national origin.

On the other hand, under export control laws and regulations such as the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR), an employer is restricted from exporting certain goods and software, technology, and technical data, and only “U.S. persons” working for U.S. companies can access export-controlled items without authorization from the U.S. government. U.S. persons include U.S. citizens, U.S. nationals, lawful permanent residents, refugees, and asylees. If the individual is not a U.S. person, employers need authorization from the federal government to share export-controlled items to workers and may need to conduct an export compliance assessment.

DOJ provides the following best practices to avoid violating the discrimination provisions of the INA:

Employers should not state in job advertisements or otherwise tell job applicants that export control regulations require applicants to have a specific citizenship, immigration status, or national origin.
Employers should not use the ITAR or the EAR as a reason to limit jobs to candidates with certain citizenships, immigration statuses, or national origins. In other words, even if a job involves accessing export-controlled items, it cannot be limited to only U.S. citizens.
When discussing export control requirements with job candidates and current employees, employers should make clear that “U.S. persons” include more than U.S. citizens.
Employers should not combine export compliance assessments with the Form I-9 process. The Form I-9 and any Form I-9 attachments should generally be used only for checking someone’s permission to work.
During the Form I-9 process, workers are allowed to present Form I-9 documentation of their choice from the List of Acceptable Documents. An employer may not limit a worker’s choice of documents from the Lists of Acceptable Documents.

Buchanan’s coordinated team of national security, employment and immigration lawyers are here to assist employers concerned about navigating United States export control regulations and anti-discrimination law.