The Department of Justice recently released a new fact sheet to help employers avoid illegally discriminating against non-U.S. citizens when complying with export control laws.
Under the Immigration and Nationality Act, employers must review documentation to check if someone they’ve hired has permission to work in the U.S. (referred to as the form I-9 process). However, applicants are allowed to present their choice of confirming documentation from a list of acceptable documents, which may or may not reveal their citizenship or immigration status. The INA also generally prohibits employers from (1) making hiring, firing, or recruiting decisions based on workers’ citizenship, immigration status, or national origin and (2) 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.
Stricter documentation requirements are imposed under U.S. export control laws and regulations that restrict the sharing or release of export-controlled goods, software, technology, and technical data to those who are not “U.S. persons,” which are defined as U.S. citizens, U.S. nationals, lawful permanent residents, refugees, or asylees. For workers who do not meet this definition, employers may have to obtain authorization from the State Department or the Commerce Department to share or release restricted items to them. Employers may thus need to conduct an export compliance assessment for such workers, which typically includes asking them to present documentation proving their citizenship or immigration status.
In light of these differing requirements, the fact sheet recommends that employers not combine the form I-9 process and the export compliance assessment. Doing so risks violating the INA; for example, if during the form I-9 process an employer requires a worker to present documents proving that they are a U.S. person, the employer may end up impermissibly limiting the choice of documentation the worker may present to prove work eligibility, making unnecessary requests for additional documents, or rejecting valid documentation.
The fact sheet offers the following best practices to avoid illegal discrimination.
- Export compliance assessments should only be done for those workers whose positions require working with export-controlled items.
- If workers in such positions are asked to provide documentation of their citizenship or immigration status, they should be advised that such documentation will be used to determine if export authorization is required.
- Workers should not be required to present form I-9 documents that prove their U.S. citizenship, specific immigration status, or show that they fall within the categories of workers who are U.S. persons for export control purposes.
- Form I-9 should not be marked with notes or other information related to export control requirements.
- If documents are copied as part of export compliance assessment they should be stored separately from form I-9 and any I-9 attachments.
- People who handle hiring and onboarding processes should receive training on discrimination based on citizenship, immigration status, and national origin.
- Any applicable policies and trainings should clearly explain that the form I-9 process is separate from an export compliance assessment and that each has different procedures, purposes, and requirements.
For more information U.S. export controls and how to ensure your company is in compliance, please contact attorney Kristine Pirnia at (202) 730-4964 or via email.
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