ITAR and EAR Confusion Turns into Immigration-Related Discrimination

2019/02/20

By: Danielle Hatch

Honda Aircraft Company LLC (Honda Aircraft) has reached a settlement agreement with the Justice Department for refusing to consider or hire certain work-authorized non-US citizens because of their citizenship status between 2015 and 2016. This is a direct violation of the Immigration and Nationality Act’s (INA) anti-discrimination provision and Honda Aircraft has agreed to pay a $44,626 penalty.

Honda Aircraft posted 25 job openings on its website and several other third-party websites and required applicants to have a specific citizenship status to be considered for the vacancies, and in many cases, they restricted the jobs to only those that were US citizens. The company believed that this was a requirement based on their understanding of the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR).

The ITAR does regulate the access of certain sensitive information to US persons (defined as US citizens, US nationals, lawful permanent residents, asylees, and refugees) and the EAR is similar in limiting access of certain controlled items and technology to US persons absent authorization from the Department of Commerce. No where in the ITAR or EAR does it require or authorize a company to only hire US citizens and lawful permanent residents. Employers that limit their hiring to US citizens and/or lawful permanent residents without legal justification may violate the INA’s anti-discrimination provision.

The biggest take away from this case is understanding why the job postings broke the law. Since the job postings required a specific citizenship status as a condition of employment, the law was being broken because a company cannot create a barrier or limit job opportunities based on citizenship. When the posting said only US citizens could be considered for the job, the company was immediately creating a barrier by unlawfully excluding US nationals, asylees, refugees, and, in some cases, lawful permanent residents that would normally be authorized by the ITAR and EAR to have such a job.

Notice: https://www.justice.gov/usao-mdnc/pr/justice-department-settles-immigration-related-discrimination-claim-against-honda