How to Avoid Immigration-Related Discrimination when Complying with U.S. Export Control Laws

Civil Rights Division, Immigrant and Employee Rights Section / Rev. March 2024

U.S. Department of Justice

Civil Rights Division

How to Avoid Immigration-Related

Discrimination when Complying

with U.S. Export Control Laws

The purpose of this fact sheet is to help employers avoid discrimination under the

Immigration and Nationality Act (INA) when complying with export control laws. Civil Rights

Division investigations have found that employers violated the INA based on a

misunderstanding of export control laws.

Under the INA, it is generally against the law for employers to:

• make hiring, firing, or recruiting decisions based on workers’ citizenship, immigration

status, or national origin

• treat workers differently based on these characteristics when verifying their permission

to work, including during the Form I-9 and E-Verify processes

Note: This fact sheet only addresses discrimination under the INA. It doesn’t address other local, state, or federal laws that

may prohibit discrimination based on citizenship, immigration status, or national origin.

What are export control laws and regulations?

U.S. export control laws and regulations include:

• The International Traffic in Arms Regulations (ITAR)

• The Export Administration Regulations (EAR)

These regulations restrict an employer’s ability to export

certain goods and software, technology, and technical data

(referred to here as export-controlled items). Under these

regulations, 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

•

Workers granted

refugee status

•

Workers granted

asylum

EMPLOYER FACT SHEET

Civil Rights Division, Immigrant and Employee Rights Section / Rev. March 2024

Best Practices to Avoid Discrimination

• Don’t 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.

• Don’t use the ITAR or the EAR as a reason to limit jobs to candidates with

certain citizenships, immigration statuses, or national origins (for example,

don’t 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.

In addition to U.S. citizens, U.S. persons include U.S. nationals, lawful permanent

residents, and workers granted asylum or refugee status. But employers might need

authorization from the appropriate federal agency to “export” (in lay terms, share or

release) export-controlled items to workers who are not U.S. persons. Employers apply

for such authorization from either the U.S. Department of State or the U.S. Department of

Commerce, depending on the item.

Contact the Department of State’s Directorate of Defense Trade Controls for more

information on the ITAR or the Department of Commerce’s Bureau of Industry and

Security for more information on the EAR.

How can employers avoid unlawful discrimination when filling jobs

that involve access to export-controlled items?

To avoid discriminating under the INA, employers generally should not limit hiring or

recruiting based on:

• national origin

• citizenship status or immigration status, unless required by a law, regulation,

government contract, or executive order

The ITAR and the EAR don’t contain employment or hiring requirements. So they don’t

require employers or recruiters, including staffing agencies, to limit jobs or recruitment to

U.S. citizens, or workers with other citizenship or immigration statuses.

Civil Rights Division, Immigrant and Employee Rights Section / Rev. March 2024

How can employers avoid unlawful discrimination when checking

whether workers need export-control authorization?

To avoid discriminating under the INA, employers should not combine export

compliance assessment with the Form I-9 process.

Because a worker who isn’t a U.S. person might

need authorization from the U.S. government to

access export-controlled items, employers may

need to do an export compliance assessment

to check if a worker is a U.S. person.

Export compliance assessment is different than

the process employers use to check an

employee’s permission to work in the United

States.

The Form I-9 process requires employers to review documentation to check if someone

they’ve hired has permission to work in the United States. The Form I-9 process isn’t

used to check proof of someone’s citizenship or immigration status. Often, employees

decide to show documentation during the Form I-9 process that doesn’t reveal their

citizenship or immigration status. 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 Lists of Acceptable Documents.

It is against the law if, during the Form I-9

process, an employer takes any of the following

actions based on a worker’s citizenship,

immigration status, or national origin:

• limits a worker’s choice of documents from

the Lists of Acceptable Documents

• requests more or different documents than

necessary

• rejects valid documentation that

reasonably appears to be genuine

When employers combine export compliance assessment with the Form I-9 process to

save time, they risk violating the INA. For instance, if during the Form I-9 process an

employer requires workers to present documents to prove they are a U.S. person, this

may impermissibly limit the choice of documentation workers may present to prove work

Form I-9 Lists of Acceptable

Documents

For the Form I-9, workers may

show their choice of:

• one List A document, or

• a combination of one

List B document and one

List C document

regardless of their citizenship,

immigration status, or national

origin.

Export compliance assessment

usually involves asking workers to

present documentation proving

their citizenship or immigration

status, to allow the employer to

assess whether authorization is

required.

Civil Rights Division, Immigrant and Employee Rights Section / Rev. March 2024

eligibility or result in unnecessary requests for additional documents. This employer could

also end up rejecting valid documentation.

Best Practices to Avoid Discrimination

Reviewing documents for export compliance assessment or the Form I-9

• Only do export compliance assessment for those workers whose

positions require working with export-controlled items.

• If you ask workers whose positions require working with export-

controlled items to provide documentation of their citizenship or

immigration status, let them know you are doing so to determine if

export authorization is required.

• Separate export compliance assessment from the Form I-9 process.

Workers may decide to show the same documentation for each

process, but separating the processes avoids a worker believing they

are being asked to prove their citizenship or immigration status for the

Form I-9 process.

• Don’t require workers 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. Instead, allow workers to choose valid documentation to

present from the Lists of Acceptable Documents.

• Don’t mark the Form I-9 with notes or other information related to

export control requirements.

Storing documents

• If you copy documents as part of export compliance assessment, store

them separately from Forms I-9 and any I-9 attachment. If an employer

attaches or stores export compliance assessment documents with the

Form I-9, it may appear that the employer asked workers for specific or

more documentation, or limited their choice of documentation, during

the Form I-9 process.

Training

• Make sure that the people who handle hiring and onboarding processes

receive training on discrimination based on citizenship, immigration

status, and national origin.

• Clearly explain in any applicable policies and trainings that the Form I-9

process is separate from export compliance assessment, and each

has different procedures, purposes, and requirements.

Civil Rights Division, Immigrant and Employee Rights Section / Rev. March 2024

Questions?

• Call the Immigrant and Employee Rights Section Employer Hotline

at 1-800-255-8155 (TTY 1-800-237-2515). Calls can be anonymous and

language services are available.

• Visit justice.gov/ier for webinars, educational documents, and frequently

asked questions for employers/HR professionals.

(Available in Spanish at justice.gov/crt-espanol/ier).

Additional Resources

• Department of State Directorate of Defense Trade Controls

• Department of Commerce Bureau of Industry and Security -

Information on Deemed Exports