Foreign National Employees of U.S. Company- What You Need to Know
by Gary Wilmarth


Any foreign national employee of a U.S. company who requires access to licensable technical data or technology should have appropriate U.S. export licensing authority to permit access. Foreign national employees who do not need access to licensable technical data or technology (based on their work responsibilities) and who can be limited and properly restricted from access will not (normally) require U.S. export licensing authority.


A company should have U.S. export licensing authority for all foreign national employees with job responsibilities or authority within the company that involves their access to controlled technical data. This includes, but is not limited to engineering, program/product, contracts, manufacturing and general management positions.


Although it may be possible to restrict a foreign national employee from controlled technical data and activities, the cost of implementing and enforcing sufficient controls and the risk of an export violation occurring, based on possible access, incidental or otherwise, may warrant obtaining an export license for the employee. This licensing authority will also avoid possible U.S. government challenge and the associated cost of a company defending the lack of proper licensing authority for a foreign national employee.


A company also needs to consider U.S. export licensing requirements when considering hiring a foreign national employee. Consideration needs to be given to job responsibilities as well as access to controlled technical data. The nationality of the potential employee, possible licensing limitations, or difficulty in obtaining U.S. Government approval, must be considered in the hiring process.

 

This publication is for informational purposes only and is not offered as legal advice as to any particular matter. No reader should act on the basis of this publication without seeking appropriate professional advice as to the particular facts and applicable law involved.

 

 
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