Under ITAR, a U.S. person is a U.S. citizen or national, a lawful permanent resident, or a protected individual such as a refugee or asylee. ITAR itself contains no hiring requirements, so the Justice Department advises employers not to limit jobs by citizenship or immigration status because of ITAR. Instead, check after the offer whether a new hire needs export authorization before they access controlled data.
This guide summarizes public government guidance. It is not legal advice; talk to your export compliance and employment counsel about your own situation.
Who counts as a U.S. person?
ITAR defines a U.S. person as a lawful permanent resident or a protected individual under 8 U.S.C. 1324b(a)(3), plus U.S. companies and government entities (22 CFR 120.62). The Justice Department summarizes the individuals as:
| U.S. persons | Not U.S. persons (may need authorization) |
|---|---|
| U.S. citizens | Workers on temporary visas, such as H-1B or TN |
| U.S. nationals | Students on OPT |
| Lawful permanent residents (green card holders) | Other foreign nationals without permanent residence |
| Workers granted refugee status or asylum |
Source for the U.S. persons column: DOJ Civil Rights Division, How to Avoid Immigration-Related Discrimination when Complying with U.S. Export Control Laws (rev. March 2024).
What ITAR actually controls
ITAR controls defense articles and technical data. U.S. persons working for U.S. companies can access controlled items without government authorization. Sharing them with someone who isn’t a U.S. person may require authorization from the State Department’s Directorate of Defense Trade Controls (or from Commerce, for items under the EAR).
In the Justice Department’s words, “The ITAR and the EAR don’t contain employment or hiring requirements.”
What the Justice Department advises
- Don’t limit hiring or recruiting by citizenship or immigration status unless a law, regulation, government contract or executive order requires it.
- Don’t state in job ads that export control rules require a specific citizenship, immigration status or national origin.
- When discussing export control with candidates, make clear that U.S. persons include more than U.S. citizens.
- Keep the export compliance check separate from the Form I-9 process, and run it only for roles that need access to controlled items.
How to write the job post
| Avoid | Use instead |
|---|---|
| “Must be a U.S. citizen due to ITAR.” | “This role involves access to export-controlled technical data. If you are not a U.S. person, the company may need to obtain government authorization before you can start this work.” |
| “Green card holders only.” | Describe the work and the export-controlled access; handle authorization questions in the export compliance check. |
| “ITAR: U.S. citizens only” on a role that also needs a clearance | “This position requires an active Secret clearance” when the government contract requires it, stated as a contract requirement. |
When citizenship really is required
Some roles do require U.S. citizenship, most often because a government contract requires a security clearance or base access. That requirement comes from the contract, not from ITAR, and the Justice Department’s guidance allows it when a law, regulation, contract or executive order requires it. Confirm the requirement in writing with your contracts team before you put it in an ad.
How Gantry handles export-controlled roles
- At kickoff we ask what controlled data the role touches and whether any contract requires a clearance or citizenship.
- We describe the export-controlled work accurately in outreach, without telling candidates ITAR requires a specific status.
- We flag early whether a candidate may need authorization, so an offer doesn’t fall apart late, and leave the export compliance check itself to your team.
Frequently asked questions
Does ITAR require employers to hire only U.S. citizens?
No. The Justice Department says ITAR and the EAR contain no employment or hiring requirements. U.S. persons include citizens, nationals, lawful permanent residents, refugees and asylees, and others may be able to work on controlled data with government authorization.
Can we ask candidates whether they are a U.S. person?
Employers can assess whether a worker needs export authorization. DOJ advises doing that only for roles that need access to controlled items, explaining why you are asking, and keeping it separate from the Form I-9 process.
When can a job require U.S. citizenship?
When a law, regulation, government contract or executive order requires it, for example a contract that requires a security clearance.
Is a green card holder a U.S. person under ITAR?
Yes. Lawful permanent residents are U.S. persons under 22 CFR 120.62.
Sources
- eCFR: 22 CFR 120.62, U.S. person
- DOJ Civil Rights Division: How to Avoid Immigration-Related Discrimination when Complying with U.S. Export Control Laws (rev. March 2024)