6 minute read | May.25.2023
U.S. employers may find it confusing that hiring for certain roles can involve what seem to be competing compliance obligations.
On one hand, the Immigration and Nationality Act makes it illegal for employers to make hiring or recruiting decisions based on an applicant’s citizenship, immigration status or national origin. Among other things, it also bars companies from treating workers differently based on these characteristics in verifying their eligibility to work.
On the other hand, U.S. export control laws and regulations restrict an employer’s ability to release certain technical information and source code without U.S. government authorization to some people who are not U.S. citizens, lawful permanent residents, refugees or asylees.
The Department of Justice recently provided guidance to help employers avoid discrimination in hiring and employment verification when complying with U.S. export controls, including the International Traffic in Arms Regulations and the Export Administration Regulations.
Here’s what companies should consider doing in light of the DOJ guidance – and some suggestions on how to do it.
Here are five things companies can do to keep export compliance separate from the I-9 process used to verify someone’s identity and authorization to work:
Here is a framework for companies to use at each stage of hiring to comply with Title VII of the Civil Rights Act and other anti-discrimination laws while hiring top talent:
If a company seeks an export license for a position:
If the company determines that it is unable to seek an export license for a position given time constraints or other legitimate business reasons:
Under the recent DOJ guidance, employers can ask an applicant whether they are a U.S. person, but only to determine if the company will need to seek an export license.
Two more best practices in the recruiting stage: