Investigations conducted by the Civil Rights Division have revealed that employers broke the Immigration and Nationality Act (INA) because they didn’t comprehend export control regulations.
Employers are generally prohibited by the INA from:
- basing decisions of hiring, terminating, or recruiting employees on their citizenship, immigration status, or country of origin.
- discriminating against workers when determining their right to work, including on the Form I-9 and E-Verify.
What laws and regulations govern export control?
- The International Traffic in Arms Regulations (ITAR)
- The Export Administration Regulations (EAR)
The export of specific products, software, technologies, and technical data (collectively referred to as “export-controlled items”) is restricted under these regulations.
According to these rules, US persons working for US companies are permitted access to export-restricted goods without prior approval from the US government.
US citizens, US nationals, lawful permanent residents, refugees and asylees comprise of US persons.
Employers may require permission from the relevant federal agency to “export” (technically, share or release) export-controlled products to employees who are not U.S. persons.
Depending on the goods, employers request such authorization from either the U.S. Department of State or the U.S. Department of Commerce.
How can employers fill positions that need access to export-controlled goods without engaging in illegal discrimination?
As per the INA, to refrain from discriminating, employers shouldn’t restrict their radius of recruitment based on:
- National origin.
- Citizenship status or immigration status, unless otherwise required by a law, rule, government contract, or executive order.
There are no recruiting or employment criteria mentioned in the EAR or ITAR. As a result, they do not mandate that employers or recruiters, including staffing firms, restrict employment to US citizens or workers with other nationalities or immigration statuses.
How can employers determine whether employees require export-control authorization without engaging in unlawful discrimination?
As per the INA, employers must not mix the Form I-9 procedure with the export compliance examination to avoid discrimination.
Employers may need to do an export compliance assessment to determine whether a worker is a U.S. person since a worker who isn’t a U.S. person may need permission from the U.S. government to access export-controlled commodities.
Assessment of export compliance is distinct from the procedure used by employers to determine if a person is authorized to work in the United States.
Employers are required to assess paperwork as part of the Form I-9 procedure to determine if a candidate for employment is authorized to work in the United States. The Form I-9 procedure is not utilized to verify someone’s immigration or citizenship status. Employees frequently opt to present Form I-9 paperwork that conceals their citizenship or immigration status. In general, Form I-9 and any attachments should only be used to verify someone’s right to work.
Workers may use any Form I-9 paperwork from the Lists of Acceptable Documents to complete the Form I-9 procedure.
It is illegal for an employer to do any of the following during the Form I-9 procedure based on a worker’s citizenship, immigration status, or country of origin:
- restricts the number of documents a worker may select from the List of Acceptable Documents.
- demands more or different documentation than what is required.
- rejects legal paperwork that logically seems to be authentic.
Employers run the risk of breaking the INA when they combine the Form I-9 and export compliance evaluation processes. For instance, if an employer insists that employees provide proof of citizenship throughout the Form I-9 process, this may impermissibly restrict the types of documents that employees can use to demonstrate their eligibility for employment or lead to needless requests for more documents. Additionally, this employer can decide to deny legitimate paperwork.
Some best practices to avoid discrimination are:
- Only those employees who have jobs that necessitate working with export-controlled commodities should undergo an export compliance assessment.
- If you request proof of citizenship or immigration status from employees whose jobs require them to handle export-controlled goods, be sure to inform them that you are doing so to establish if export authorization is required.
- Separate the Form I-9 procedure from the evaluation of export compliance. Workers may choose to present the same documents for each step, but by keeping the processes separate, no employee will mistakenly believe that their citizenship or immigration status is being verified for the Form I-9 process.
- Do not demand employees to provide Form I-9 documentation proving their citizenship, particular immigration status, or that they are U.S. persons for the purposes of export control. Instead, give employees the freedom to select legitimate documents from the Lists of Acceptable Documents.
- Don’t include any notes or other information in the Form I-9 that relates to export control regulations.
- If you make copies of documents as part of the evaluation of export compliance, preserve them apart from Forms I-9 and any attachments to Forms I-9. It may appear that an employer requested particular or additional paperwork from employees throughout the Form I-9 procedure if they attach or preserve export compliance assessment papers with the Form I-9.
- Ensure that those in charge of the hiring and onboarding procedures receive instruction on how to avoid discrimination based on national origin, immigration status, and citizenship.
- In any related rules and training, it should be made very clear that the Form I-9 process is distinct from the evaluation of export compliance and that the two have unique methods, goals, and specifications.
