FAQs (Frequently Asked Questions)
I have an employee who is a Canadian citizen working for my company on an H1-B visa. Doesn't that employment relationship fall within the Canadian Exemption for licensing under the ITAR?
NO, the Canadian exemption does not cover employment in the United States.
Canadian Nationals working in the United States for U.S. employers do fall under the ITAR. The Canadian exemption does not apply. Licensing the foreign national’s employment is required. The current procedure is application of a DSP-5 with DDTC.
I have an employee on an L-1A visa; we applied for permanent residency (a green card). The I-140 is approved but the I-485 (Adjustment of Status) is still pending. Do I still have to license his employment with the State Department?
YES, because the employee is still a foreign national. A person pending adjustment is not yet a U.S. permanent resident. There are many reasons that adjustment to permanent residency may be denied. You are required to treat the employee as a foreign national until you have evidence that the green card was issued.
I have a current employee whose "10-year green card" has expired. Has their status as a U.S. permanent resident expired and now they are again a foreign national for purposes of ITAR?
NO, this employee is still a permanent resident. Permanent residents are obligated to keep their green cards current, but if you have an employee with a green card of ten (10) year duration and that current employee allowed the green card to expire, their status has not expired. The employer is not required to re-verify eligibility for permanent employment of a lawful permanent resident who holds a green card that is of ten (10) years in duration. This only applies to persons holding the 10-year green card and not to those holding the two-year conditional green card
An employment applicant has provided an expired 10-year green card as evidence of their lawful status in the United States and eligibility for employment, but no other documents. Can I hire the individual based on the expired green card?
NO. Although the individual's status as a permanent resident did not expire with the expiration of the 10-year green card, all permanent residents are required to keep the green card current. The employer cannot complete the I-9 verification process with an expired green card.
We have an employee who had been in nonimmigrant status (H1-B, L-1, E-1/E-2) that has now expired. The I-140 is approved, the I-485 (adjustment of status) is pending, the employee has travel permission and an I-765 EAD Card (employment authorization document) that expires in a few days. The employee came in to HR and presented proof that the extension of the EAD card was applied for thirty (30) days before the expiration of the card. Can the employee keep working?
NO. This employee should be temporarily terminated or benched until they are able to provide evidence of a valid unexpired EAD card. Many people think their employment permission is extended ninety (90) days beyond the expiration date of the EAD card so long as an extension was filed prior to the expiration date. This had been true many years ago, but current law is quite clear the EAD card must be unexpired, proof that an extension was applied for is insufficient.
My company is working with a foreign military, training personnel on the use of public open standards of algorithms and applications published by IEEE available to anyone. Is this exempt from ITAR licensing because the technology is in the public domain?
NO, licensing is required. The doctrine of “Defense Services” is troubling for many companies working with public domain information and technology. In this case, you are not delivering “COTS” (Commercial Off of the Shelf), you are delivering a customized solution or training to a military entity. Ask yourself, If this military command could complete this on their own why didn’t they just download the information from publicly released sources instead of coming to us? Coming to your company to make sense of those open standards is a defense service.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.