May 20, 2019

May 20, 2019

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Hiring US Citizens Only for ITAR Compliance Can Violate the Immigration and Nationality Act

The Department of Justice (DOJ), Civil Rights Division, announced on August 29, 2018, its civil settlement with the international law firm, Clifford Chance US LLP, for violations of the Immigration and Nationality Act (INA), 8 U.S.C. 1324b, attributable to Clifford Chance's overly restrictive interpretation of who can work on projects involving data controlled by the International Traffic in Arms Regulations (ITAR).

Clifford Chance, for purposes of conducting a large scale document review involving ITAR controlled data, restricted the project to U.S. Citizens only, based on its good faith belief that only U.S. Citizens could work on ITAR projects. But the ITAR generally allows U.S. Persons to have access to ITAR controlled data, and defines a (natural) "U.S. Person" as "a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20)" or "a protected individual as defined by 8 U.S.C. 1324b(a)(3)." See 22 C.F.R. 120.15. Thus the ITAR does not restrict access to U.S. citizens only, but also generally allows access by non-U.S. citizens who fall within the following classes, among others:

  • Nationals of the U.S. (i.e., those born in the "outlaying" possessions of the U.S. meeting specified requirements, or individuals born of a parent who meet specified requirements);
  • Aliens lawfully admitted for permanent residence (i.e., "green card" holders);
  • Certain refugees; and
  • Certain asylum seekers.

According to DOJ, Clifford Chance unlawfully discriminated against persons based on their citizenship by excluding eligible non-U.S. citizens from its ITAR project. DOJ rejected Clifford Chance's argument that it should be absolved of liability because it acted in good faith (there's no good faith exception to the prohibition against discrimination under 1324b), and Clifford Chance agreed to pay a $132,000 civil penalty, implement various corrective actions, and allow DOJ oversight for a two-year period.

What does that mean for you? If you hire or contract with U.S. Citizens only for purposes of fulfilling your ITAR obligations, you may be violating the INA. You should review your hiring and contracting processes to make sure that you do not limit hiring or outsourcing to U.S. Citizens only, when ITAR compliance is your justification for denying job opportunities based on citizenship or national origin.

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David Ring Corporate litigation lawyer Wiggin Dana
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David is nationally known for representing companies and individuals when the stakes are greatest, whether investigating sensitive internal matters, defending against criminal charges, litigating complex civil matters or building compliance programs for companies confronting  enforcement actions. David is a seasoned litigator with decades of trial experience and, as a result of his successes as a government-appointed monitor and in-house counsel, is nationally known for rebuilding corporate compliance programs under urgent circumstances. He is Partner-in-Charge of the...

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Najia is a business immigration lawyer who has dedicated her career to helping U.S. and international employers hire individuals with specialized skills her clients need to grow and thrive.

An immigrant herself, Najia is Co-chair of Wiggin and Dana’s Immigration and Nationality Law and Compliance Practice Group and was the firm’s first attorney focusing entirely on immigration law. Employers often consult Najia to clarify complex business immigration requirements in a dynamic enforcement environment.

Najia represents a wide range of organizations in their business immigration and compliance efforts, including national and multinational companies, emerging companies, and franchisors, as well as research, educational, healthcare, and religious institutions. She serves clients in financial services, life sciences, technology, manufacturing, utilities, retail, defense, the arts, and more. Najia has recently helped several clients prove that their desired analysts, executives, marketing experts, and young careerists are essential, uniquely skilled “professionals” qualified for the positions for which they are being recruited.

Described as diligent, thorough, and responsive, Najia has a strong acumen for business immigration strategy, including issues around: the establishment of new companies; immigration sponsorship policies; the review of mergers, acquisitions, and other changes in corporate structure; and the international transfer of students, faculty, and employees. She represents clients in connection with nonimmigrant and immigrant visa petitions, labor certification applications, family-based petitions, adjustment of status and citizenship applications, and immigration interviews. She also regularly counsels employers with respect to I-9 compliance and global immigration procedures.

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