DOJ Issues Guidance on Avoiding Immigration-Related Discrimination When Complying With Export Control Laws

The U.S. Department of Justice (DOJ) recently issued new guidance to help employers avoid discrimination under the Immigration and Nationality Act (INA) when complying with U.S. export control laws. This guidance follows the DOJ’s settlement with General Motors (GM) to resolve the government’s determination that GM’s method of conducting export compliance assessments discriminated against non-U.S. citizens in violation of the INA.

When conducting an export compliance assessment for employment purposes, U.S. employers should carefully review the DOJ’s guidance and take note of the GM settlement to avoid unlawful discrimination under the INA.

U.S. Export Controls and the GM Settlement

U.S. export control laws and regulations, such as the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR), control the export of commodities, software, and technology outside the U.S. The ITAR and EAR further govern and restrict “deemed exports,” i.e., the release of technical data, technology, or source code to individuals within the U.S. who are not “U.S. persons.” Under U.S. export control laws, a U.S. person is defined as any individual who is a U.S. citizen, lawful permanent resident, refugee or asylee. 

In the context of employment, employers may need to obtain a license from the U.S. government to authorize deemed exports of controlled information to non-U.S. persons employed by them in the U.S., including those on a nonimmigrant work visa (e.g., L1 or H-1B visa). To determine whether a license is required, the employer may need to obtain citizenship, residency or immigration status information to determine whether an individual worker meets the export control definition of a U.S. person.

When complying with U.S. export controls, however, employers must also ensure compliance with the INA, which generally prohibits employers from discriminating based on citizenship, immigration status or national origin during the hiring process, including by imposing unnecessary documentary demands as a condition of employment. The INA 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. 

The DOJ’s investigation of GM revealed that the company’s violations stemmed in part from its failure to properly consider the INA’s anti-discrimination provisions. Specifically, the DOJ determined that GM unnecessarily required lawful permanent residents to provide an unexpired foreign passport as a condition of employment. Moreover, GM improperly combined its process for verifying workers’ permission to work in the U.S. with its export compliance assessment, which resulted in GM unnecessarily requiring that newly hired non-U.S. citizens provide specific and unnecessary documents to prove their permission to work.

Under the terms of the agreement, GM must separate its process to verify permission to work in the U.S. from its export compliance assessment process, and stop requiring lawful permanent residents to present foreign passports as a condition of employment. GM must also revise its employment practices and train its employees on the INA’s requirements. 

DOJ Guidance to Avoid Immigration-Related Discrimination 

In announcing the GM settlement, the DOJ issued an employer fact sheet on how to avoid discrimination under the INA when complying with U.S. export control laws. The DOJ fact sheet provides best practices to help employers avoid immigration-related discrimination when filling jobs that involve access to export-controlled information. Some of the best practices include: 

• Do not use the ITAR or the EAR as a reason to limit jobs to candidates with certain citizenships, immigration statuses, or national origins (for example, do not limit jobs to U.S. citizens because the job involves accessing export-controlled items)
• When discussing export control requirements with job candidates and current employees, make clear that U.S. persons include more than U.S. citizens
• Only conduct export compliance assessments for those workers whose positions require working with export-controlled items
• Separate export compliance assessment from the Form I-9 process
• Ensure that the people who handle hiring and onboarding processes receive training to prevent discrimination based on citizenship, immigration status, and national origin

Impact on Employers

U.S. employers should carefully review their written policies and procedures to ensure they adequately address compliance with the INA when assessing whether employees require access to export-controlled information. As noted by the DOJ as best practice, human resource managers should be particularly sensitive to these issues when hiring and onboarding new employees.

For more information, please contact the Barnes & Thornburg attorney with whom you work or Tejas Shah at 312-214-5619 or tejas.shah@btlaw.com, Mercedes Badia-Tavas at 312-214-8313 or mbadiatavas@btlaw.com, Clinton Yu at 202-371-6376 or clinton.yu@btlaw.com or Luis Arandia at 202-408-6909 or luis.arandia@btlaw.com.

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