To prevent deemed disclosures inside your organization, ensure that your employees’ citizenship does not inadvertently jeopardize your business with export control violations. Foreign-born applicants are on the rise in the fields of science, technology and advanced manufacturing. An understandable reaction to avoid running afoul of the complex export control laws is to hire U.S. Persons only. U.S. Persons include U.S. citizens, green card holders, and asylum and refugee visa holders. However, doing so would open your company to federal antidiscrimination laws. In short, companies may not use national origin as a basis for hiring.
Where a particular position will have access to controlled technology, citizenship verification is required. The Department of Justice’s Office of Special Counsel has issued guidance that this verification must be done separate and distinct from the employment eligibility verification process so as to avoid discriminatory practices. Your HR professionals would address nationality in two steps. First, complete the I-9 verification or eVerify process to determine employment eligibility. Then, confirm citizenship status to determine if a deemed export license is required. Keep these processes documented separately to avoid potential export penalties that can reach the millions.
When advertising for positions that will have access to controlled technology, include language in the job posting that indicates a deemed export license may be required, or citizenship requirements must meet export control regulations. You cannot request U.S. persons only. Be sure that this requirement only applies to positions subject to export control laws, and pay attention to when the position requires access to classified data as well.
Submit the Form I-129 Petition to the U.S. Citizenship and Immigration Service (USCIS) as soon as possible, as this process can take from three to eight weeks or longer, and approval is not guaranteed. Pay particular attention to precisely the controlled technology that this foreign national employee would access, as you will also have to make a determination of whether or not you will need to obtain a license in order to permit such access. This determination may reveal that an exemption is available. You would need to prevent access to the controlled information until both the visa and license are secured. You would also have to develop and implement a Technology Control Plan.
Consider conditional employment offers in case authorization or lawful access to controlled technology is not granted. Establish procedures to monitor ongoing access to controlled technology and deemed export license expirations. Include in your onboarding process an orientation training on export control compliance. And finally, ensure that these HR policies and procedures are documented and followed.