US export controls compliance while avoiding immigration-related discrimination: DOJ issues guidance

The Immigrant and Employee Rights Section, Civil Rights Division (IER) of the Department of Justice (DOJ) issued the Employer Fact Sheet and guidance at the same time as announcing a new enforcement action against General Motors regarding certain issues including those related to lawful permanent resident aliens (green card holders) and overdocumentation requests during the hiring process. 

Under U.S. export control laws, the release of data to an individual who is not a U.S. Person, even within U.S. borders, is deemed to be an export to the recipient's country of permanent residency or citizenship. A U.S. Person is defined under the U.S. export control laws as a U.S. citizen, U.S. national, U.S. lawful permanent resident alien (green card holder), U.S. asylee and U.S. refugee. Consequently, U.S. companies, universities, and other organizations should exercise caution in their management and release of export controlled information and technology both inside and outside the territorial United States and implement appropriate policies and procedures.  Such caution includes a proper export control assessment and screening process during the hiring and onboarding process, if required, that is consistent with U.S. anti-discrimination laws. Importantly, this export compliance assessment  must be conducted separate and apart from the verification of identity and employment eligibility.  Given the nature and complexity of this topic, a company should be assess its procedures and risks on a case-by-case basis.

The IER (formerly the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices) is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA), which protects work authorized individuals from employment discrimination on the basis of citizenship status or national origin discrimination, including discrimination in hiring and the employment eligibility verification (Form I-9) process. IER from time to time issues determinations and rulings that have provided guidance on the request and collection of such information. IER has also negotiated settlement agreements with organizations that have violated the INA while attempting to comply with export laws, which provide insight into potential organizational liability in this area. 
The recently released Employer Fact Sheet in April 2023 includes a number of tips and best practices which states:

“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."

Next steps

Export compliance assessments and  screening of personnel is complex.  Companies need to fully understand immigration laws, anti-discriminations laws and export control laws. Hogan Lovells has long been a thought leader regarding the intersection of export controls and anti-discrimination laws and regulations.¹ If you have questions regarding this guidance or these issues, please contact us.

Authored by Beth Peters

References

1 For more information about these topics please review the following publications:  “Export Controls and Immigration: Balancing Export Control Compliance with Anti-Discrimination Laws” (Dec. 17, 2021); Compliance Best Practices: Employing, Screening, and Collaborating with Non-U.S. Nationals, Beth Peters et al., Practicing Law Institute (Sept. 29, 2015); M. Beth Peters, David W. Burgett and Joy E. Sturm, “Complying with Immigration, Export Control, and Industrial Security Requirements When Working Collaboratively with Foreign National: A Case Study,” The International Lawyer 35.1 (May 21, 2001); M. Beth Peters, David W. Burgett and Joy E. Sturm, “Foreign Nationals in U.S. Technology Programs: Complying with Immigration, Export Control, Industrial Security and Other Requirements,” Immigration Briefings, (Oct. 2000).