Can I hire an engineer who is not a U.S. citizen?
Yes. Export control regulates what you show them, not who you employ, and treating it as a hiring rule creates a different legal problem.
Written for: Founders and hiring managers at technical companies
The short answer
- Export control regulates releases of data, not employment.
- U.S. person includes more than citizens.
- A citizens only posting can create discrimination liability on its own.
- Decide about the data and the access, and record that decision.
The rule people think exists
There is a widespread belief that export control requires U.S. citizens only for technical roles. It does not. The regulations control the release of controlled technology and technical data to foreign persons. They say nothing about who you may employ, and the definition of a U.S. person is broader than citizenship: lawful permanent residents and certain protected individuals are included.
The rule that does exist
Releasing controlled technology to a foreign person inside the United States is treated as an export to that person's country. That release can happen through a screen share, a repository invitation, a design review, or an administrator's access to a system. So the question is not whether you may hire someone. It is which data the role needs and whether that release is authorized.
Why getting this wrong is expensive twice
Advertising a role as citizens only, refusing lawful permanent residents, or demanding particular immigration documents can create discrimination liability under federal law, entirely separately from export control. Companies have been penalized for exactly this while believing they were being careful. The safe formulation is that the role requires eligibility for access under applicable export control and contract requirements, and the decision gets recorded about the data, not the person.
What to do instead
Define the role's actual data needs first. Classify that data. If it is controlled, decide whether the work can be structured without that access, or whether an authorization is available. Record the decision about the item and the access, and keep immigration documentation separate and restricted.
The rules behind this
- 15 CFR 734.13
- 22 CFR 120.50
- 22 CFR 120.62
- 8 U.S.C. 1324b
This is a plain reading of published rules, not legal advice, and it is not a determination about your item. What decides your case is your exact configuration, your parties, and your destination. The limits, in full.
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Related questions
ITAR or EAR, which one applies to me?
Two regimes, two agencies, and the wrong guess is expensive. The test is what the item is and what it was designed for, not what industry you are in.
What does EAR99 actually mean?
It means no Commerce entry describes your item. It does not mean you can ship it anywhere, and it is not a licence.
What is a deemed export?
Showing controlled technology to a foreign person inside the United States counts as exporting it to their country. Nothing has to ship.
Does encryption in my product trigger export controls?
Often yes, and it is a separate question from whatever else the product does. There are workable exceptions, and each has conditions you must actually meet.