ABOVE: DDTC offices in DC

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The Directorate of Defense Trade Controls (“DDTC”) has just revised its guidance on licensing foreign persons employed by U.S. persons. Foreign persons that will have access to ITAR-controlled technical data need to be licensed by DDTC prior to obtaining access to that technical data, and the guidelines describe how to use licensing application form DSP-5 to obtain the requisite license.

The revised guidelines contain only one change, and it is a footnote inserted at the beginning of the document relating to the enforcement of anti-discrimination provisions by the Office of Special Counsel in the Civil Rights Division of the Department of Justice. The oddly vague footnotes reads in its entirety as follows:

The ITAR imposes a license requirement for the export of U.S. defense articles and defense services to foreign persons. The ITAR does not, however, impose requirements on U.S. companies concerning the recruitment, selection, employment, promotion or retention of a foreign person. Federal law prohibits discrimination in hiring, firing, or recruitment/referral for a fee based on an individual’s citizenship status or national origin. See Section 274B of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. Unless otherwise required to comply with law, regulation, executive order, government contract, or determination by the Attorney General of the United States, discrimination based on an individual’s citizenship status is unlawful. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (Office of Special Counsel) in the Civil Rights Division of the United States Department of Justice enforces Section 274B of the INA. The Office of Special Counsel, located in Washington, D.C., has issued public guidance relating to non-discriminatory practices when complying with ITAR. For additional guidance, please contact the Office of Special Counsel at [email protected], its employer hotline at 1-800-255-8155, or visit its website at www.justice.gov/crt/about/osc.

You would not be alone if your first reaction to this elliptical mish-mash of bureaucratese and CYA-speak does not seem to make any sense. It seems to be saying that the ITAR requires you to discriminate against non-citizens and that the Immigration and Nationality Act makes it illegal to discriminate against non-citizens and it is entirely up to you to figure out how to comply with both requirements at once. So long, poor exporter, and thanks for all the fish.

This problem is complicated by the footnote referencing “public guidance” by the OSC without, of course, bothering to provide, you know, something helpful like a link to that guidance. In fact, the OSC hasn’t issued anything that might fairly be called public guidance on how to navigate the Scylla of the ITAR and the Charybdis of the INA. Instead, I was able to locate two “Technical Assistance Letters” issued by the OSC in response to narrow questions posed by members of the public.

The first said that it was illegal for employers to use documents gathered in the I-9 process to determine whether the employee was eligible to receive ITAR-controlled technical data. It said, somewhat confusingly, that the employer must gather documents establishing ITAR eligibility in a “separate and distinct verification procedure,” whatever that means.

The second technical assistance letter advises that employers may inquire whether applicants are citizens of embargoed countries for purposes of complying with export obligations “as long as such inquiries were made uniformly and without the intent to discriminate on the basis of national origin or citizenship status.” Just to keep things confusing, the letter says that the OSC reserves the right to examine the “totality of the circumstances” to determine whether an inquiry related to citizenship in an embargoed country was nevertheless discriminatory notwithstanding the export issue.

Reading between the lines of these two OSC letters, there is one thing that can be said with certainty about simultaneous compliance with the INA and the ITAR. Because permanent residents, refugees and asylees are entitled to receive ITAR-controlled technical data and employer may not, in an effort to comply with the ITAR, limit employment to U.S. citizens or even to U.S. citizens and permanent residents. Beyond that, you are pretty much on your own in reconciling the two regulatory schemes, with each agency helpfully pointing its fingers at the other for guidance.