Notwithstanding its title, the following is not intended as a narrow treatment of employment practices in the national security sector. While certainly relevant to those in the defense trade, this article will likely also be relevant to any entity in the critical or emerging technology fields. Those involved in the defense trade, itself an expansive and expanding field, have been navigating the tender traps at the intersection of export control and antidiscrimination laws for many decades when recruiting and hiring Foreign Person employees in export-controlled projects.

The term military-civil fusion has been used to describe the aggressive policies of our strategic competitors, mainly China, in harvesting civilian technologies for military purposes. China's military advances have spurned initiatives in our own defense innovation intended to increase investments and improve the Department of Defense's ability to also leverage commercial technologies. Bolstering U.S. defense innovation through commercial technologies is not only our future, but our present. From an implementation standpoint, innovation and investment in the STEM fields presents an opportunity for rapid procurement. Most pertinent to the topic at hand, the percentage of the foreign born is approximately 2.5 times the respective percentage for native born in the engineering and in the computer and information sciences baccalaureate (or higher) programs. (Source is 2019 American Community Survey (ACS) deriving data from https://usa.ipums.org/usa/ using data culled from the U.S. Census Data for Social, Economic, and Health Research) Among the foreign born with bachelor's degrees, a full 20 percent are in STEM occupations compared with 11.4 percent for the native born. (See also Subhayu Bandyopadhyay and Praew Grittayaphong, Fed. Res. Bank of St. Louis, STEM Skills among Foreign-born Workers in the U.S. (Dec. 10, 2020) for context.) This will continue to determine the available pool of candidates to fill certain STEM roles.

This statistical trend is likely to continue. Indeed, for over a decade, every Petition for a Non-immigrant Worker with the U.S. Citizenship and Immigration Services (USCIS) has required employer certification regarding the release of controlled technology to a Foreign Person in the United States. The purpose of this article is to assist the reader with staying onside the penalty-laden export controls regulations—principally the International Traffic in Arms Regulations (ITAR) (22 C.F.R. §§120-130)—as well as the penalty-laden federal anti-discrimination laws—principally Title VII of the Civil Rights Act of 1964 (Title VII) and the Immigration and Nationality Act (INA), which prohibit discrimination based on national origin and citizenship. This article does not discuss the requirements of the Export Administration Regulations (EAR) since exports of EAR-controlled technology are often subject to a license exception. For example, EAR §740.6 provides for license exception for technology and software under restriction (TSR), which permits the release of controlled technology to nationals Country Group B so long as the same do not share the technology with nationals of Country Group D and E.