February 25, 2013 IER Technical Assistance Letter on hiring and ITAR/EAR

U.S. Department of Justice
Civil Rights Division
Office of Special Counselfor Immigration-Related
Unfair Employment Practices· NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
February 25, 2013
By Email (mgoeschl@morganlewis.com)
Malcolm K. Goeschl
Morgan, Lewis & Bockius LLP
One Market, Spear Street Tower
San Francisco, CA 94105
Dear Mr. Goeschl:
This letter is in response to your January 7, 2013, email seeking technical assistance on
behalf of a client that "has a policy of not hiring employees who require export licenses and
would like to prescreen applicants who will require such a license." We apologize for the delay
in our response. Your email poses four questions:
1. 	May the employer prescreenjob applicants from certain countries who will require
export licenses?
2. 	If yes, do you have recommendations on how the employers should do this without
violating employment verification antidiscrimination laws? Would any of the
following questions be acceptable to put on ajob application?
a. 	Are you a national of a country that may require the employer to obtain an
export license? (This question may be problematic because the applicant will
not likely know whether this is the case or not, and because if the applicant is
a LPR, he/she would not need an export license).
b. 	Are you currently in nonimmigrant status (e.g., F-1, H-1B, L-1), and a
national of a country that may require the employer to obtain an export
license?
c. 	Are you currently in nonimmigrant status (e.g., F-1, H-1B, L-1), and a
national of one of the following countries [the list would be countries that the
employer knows trigger export license requirements]?
d. 	Do you now or will you in the future require immigration sponsorship to work
at [the employer]? Ifyou answered yes to this question, please answer the
following question: are you a national of one of the following countries: [the

list would be countries that the employer knows trigger export license
requirements ]7
3. 	Do you have any other suggested questions to prescreen applicants who require
export licenses?
4. 	Assuming the employer cannot, or chooses not to pre screen applicants who require
export licenses, may it rescind its offer to an employee once it learns that he/she
requires such a license? This would typically happen as soon as the employee accepts
, the offer of employment, and provides documentation to begin the immigration
sponsorship process.
As you may know, OSC enforces the anti-discrimination provision of the Immigration
and Nationality Act ("INA"), as amended, 8 U.S.C. § 1324b. The anti-discrimination provision
prohibits four types of unlawful conduct: (1) citizenship or immigration status discrimination; (2)
national origin discrimination; (3) unfair documentary practices during the employment
eligibility verification (Form 1-9) process ("document abuse"); and (4) retaliation for filing a
charge or asserting rights under the anti-discrimination provision. Although OSC cannot give
you an advisory opinion on any set of facts involving a particular individual or company, we are
pleased to provide some general guidelines regarding compliance with the anti-discrimination
provision of the INA.
We understand your questions regarding employment of individuals who may require an
export license to refer to the requirements of the International Traffic in Arms Regulations
("IT AR") ,and/or the Export Administration Regulations ("EAR"). Your questions appear to
relate to the employment of individuals who are not considered "u.S. persons" under ITAR and
individuals who are covered by the export control rule under the EAR. Under the ITAR, a "U.S.
person" includes a lawful permanent resident or a protected individual as defined by 8 U.S.C. §
1324b(a)(3). See 22 C.F.R. § 120.15. The statutory definition of "protected individuals" under the
anti-discrimination provision of the INA includes, among other individuals, U.S. citizens and
nationals, refugees and asylees. See 8 U.S.C. § 1324b(a)(3)(B). Please note that guidance on the
licensing of foreign persons by the U.S. Department of State states that while the ITAR imposes
licensing requirements, ~~the ITAR does not, however, impose requirements on U.S. companies
concerning the recruitment, selection, employment, promotion or retention of a foreign person." U.S.
Department of State, Directorate of Defense Trade Controls, "Licensing of Foreign Persons
Employed by a U.S. Person - UPDATED" (07118/2012), available at
http://www.pmddtc.state.gov/licensing/documents/WebNotice LictmsingForeign2.pdf. Under the
EAR, the export control rule does not apply to an individual admitted for lawful permanent residence
or a protected individual as defined by 8 U.S.C. § 1324b(a)(3). See 15 C.F.R. § 734.2(b)(2)(ii).
Citizenship status discrimination occurs when individuals are not hired or are fired
because of their citizenship or immigration status. 8 U.S.C. § 1324b. However, an employer
may consider citizenship status if it is required in order to comply with a law, regulation, or
executive order, or the terms of a Federal, State, or local government contract. 8 U.S.C. §
1324b(a)(2)(C). Under the INA, only "protected individuals" as defined by 8 U.S.C. §
1324b(a)(3) are protected from citizenship status discrimination. Therefore, an employer that

has a policy of not hiring individuals who are not "protected individuals" based solely on the
person's citizenship status would not be in violation of the INA's anti-discrimination provision.
With respect to your questions relating to asking applicants whether they are currently in
nonimmigrant status, your questions as posed may screen out refugees and asylees who, as noted
above, are protected from citizenship status discrimination, and who may misunderstand the
question to preclude their eligibility for employment. If the information is sought for compliance
with export licensing requirements, and not for employment eligibility verification or any
. discriminatory purposes, inquiring about an applicant's citizenship or country of origin for this
purpose would not appear to violate the INA's anti-discrimination provision as long as such
inquiries are made uniformly and without the intent to discriminate on the basis of national
origin or citizenship status.
Notwithstanding the limited scope of protection from citizenship status discrimination,
please note that all work-authorized individuals are protected from national origin
discrimination, document abuse and retaliation under 8 U.S.C. § 1324b. This office investigates
claims of national origin brought against employers with four to 14 employees and the Equal
Employment Opportunity Commission investigates national origin discrimination claims against
employers with more than 14 employees. As a result, an employer that refuses to hire a work
authorized individual who is not a "protected individual" for citizenship status, but rather, based
on that individual's country of origin and/or country of citizenship may be committing prohibited
national origin discrimination. To the extent an employer screens out all applicants from
particular countries or rescinds job offers for certain applicants based on the assumption that the
employer would need to obtain an export license for those individuals at some point during the
employment relationship, the applicants may allege national origin discrimination in a charge
filed with OSC (or with the EEOC depending upon the size of the employer). An allegation of
this nature would prompt an OSC investigation if the employer is determined to have four to 14
employees or would be referred to the EEOC in the case of a larger employer.
We hope this information is helpful. For more information on the INA's anti
discrimination provision, please call OSC's employer hotline at 1-800-255-8155 or visit OSC's
website at www.usdoj.gov/crtlabout/osc.
SeemaNanda
Deputy Special Counsel