ITAR for waiver/exemption for Foreign Persons

[WCHorn]

I know of a mid-size manufacturer with this dilemma. Of all the folks working there, one mid-level factory worker is a Foreign Person. Everyone else, including the company, is a US Person.

They make a few part numbers that are defined by a customer as subject to ITAR or EAR regulations. The part numbers are few and far between compared to their total manufacturing output. They have a finished goods inventory (small quantities, integrated in general storage areas) of the parts. They assume the worker must not participate in the manufacture of the parts and must not have access to the finished goods and technical information related to the parts.

Their Human Resources department is concerned that singling this individual out as a Foreign Person and denying work to him/her could be construed as discrimination. The Foreign Person has been in the US for five years, getting annual renewals of a work visa. I know no further details.

Is there a process the company can use to authorize the person work on ITAR product? If so, what is it? Thanks in advance for your help!

 

[MIREGMGR]

I can't speak to the ITAR/EAR niceties, but with regard to HR issues, you should get this reviewed by your corporate attorney. I think he/she will state that implementation of an explicit federal legal requirement never creates legal discrimination.

 

[PaulJSmith]

I know there was some movement last year towards an exemption for the UK, but as I recall it was rather complicated. I used to work for a British-owned aerospace company, and always found it interesting that some of our upper management were not allowed in some of the meetings because of ITAR.

And I agree with MIREGMGR. There should be no legal ramifications.

 

[Kales Veggie]

I know of a mid-size manufacturer with this dilemma. Of all the folks working there, one mid-level factory worker is a Foreign Person. Everyone else, including the company, is a US Person.

They make a few part numbers that are defined by a customer as subject to ITAR or EAR regulations. The part numbers are few and far between compared to their total manufacturing output. They have a finished goods inventory (small quantities, integrated in general storage areas) of the parts. They assume the worker must not participate in the manufacture of the parts and must not have access to the finished goods and technical information related to the parts.

Their Human Resources department is concerned that singling this individual out as a Foreign Person and denying work to him/her could be construed as discrimination. The Foreign Person has been in the US for five years, getting annual renewals of a work visa. I know no further details.

Is there a process the company can use to authorize the person work on ITAR product? If so, what is it? Thanks in advance for your help!

I doubt a waiver is possible. Federal regulations are regulations. No discrimination. The company must take precaution to protect the information.

I worked for a Swedish owned company and Foreign Persons were not allowed in certain meetings and did not have access to ITAR controlled information.

I have a client today who has a separate floor in the building with limited access because of defense work. Also any ITAR controlled information has special access controls. Actually the badges show if a person is ITAR certified after a person has gone through ITAR training.

Do not take this lightly.

 

[tomvehoski]

I also recently worked for a defense contractor. It was possible to get a foreigner ITAR clearance. I'm not sure what it involved, but I know we had some people that were not US citizens but were allowed into ITAR restricted areas. I believe background checks were necessary.

Overall I found the entire ITAR program rather silly and ineffective. There is nothing guaranteeing that just because someone is a US citizen that they won't sell secrets. Even with a background check there is no guarantee. Our ITAR controlled engineering area was also simply an area of cubicles with higher walls and a badge reader at the door.

I do not believe that there is any discriminatory issue in requiring US citizenship to be an employee or work in certain jobs. Citizenship is not a protected class like gender, race, etc.

 

[Kales Veggie]

I also recently worked for a defense contractor. It was possible to get a foreigner ITAR clearance. I'm not sure what it involved, but I know we had some people that were not US citizens but were allowed into ITAR restricted areas. I believe background checks were necessary.

Overall I found the entire ITAR program rather silly and ineffective. There is nothing guaranteeing that just because someone is a US citizen that they won't sell secrets. Even with a background check there is no guarantee. Our ITAR controlled engineering area was also simply an area of cubicles with higher walls and a badge reader at the door.

I do not believe that there is any discriminatory issue in requiring US citizenship to be an employee or work in certain jobs. Citizenship is not a protected class like gender, race, etc.

There is a difference between a US person and a US citizen per the ITAR rules:

http://oiir.hq.nasa.gov/nasaecp/Webbrfg/tsld018.htm

 

[rickpaul01]

It is a straight forward process to obtain access for a foreign person. Go to www.pmddtc.state.gov and look under Licensing

 

[Stijloor]

There is a difference between a US person and a US citizen per the ITAR rules:

http://oiir.hq.nasa.gov/nasaecp/Webbrfg/tsld018.htm

True, after 32 years as a "Permanent Resident", I am still a "foreign person."

 

[rickpaul01]

True, after 32 years as a "Permanent Resident", I am still a "foreign person."

No - If you are a permanent resident alien (green card holder) than under ITAR you are a US person.

 

[gbcqc]

No - If you are a permanent resident alien (green card holder) than under ITAR you are a US person.

That is correct, my wife is a permanent resident alien and works for an ITAR company.