The Department of Justice filed a request for a court order to enforce an administrative subpoena in an investigation into Space X on a charge of discrimination in hiring. According to the filing, the DOJ’s Immigrant and Employee Rights Section (IER) said it received a complaint from a non-citizen in May, and Space X had not fully complied with information requests:
The charge alleges that on or about March 10, 2020, during the Charging Party’s interview for the position of Technology Strategy Associate, SpaceX made inquiries about his citizenship status and ultimately failed to hire him for the position because he is not a U.S. citizen or lawful permanent resident.
While I am not an attorney, I worked in human resources for 15 years, and this request for additional information seems strange. Most often, requests from the government are to ensure employers are complying with employment law that requires them to confirm a new employee’s status as a U.S. Citizen, permanent resident, or holder of an appropriate authorization to work in the United States.
Employers document this information on an I-9 form. If the employee is on a visa, the employer takes on financial and other obligations to renew these work authorizations as required. The employer is under no obligation to incur these burdens. Most job applications have a question that asks if an applicant is authorized to work in the United States. Job postings can also inquire whether an applicant will require sponsorship for a visa. Where applicants with the required skills who are U.S. citizens or permanent residents are available, an employer’s decision to hire someone with a U.S. work authorization, thus avoiding administrative and legal costs, is understandable.
Before hiring a foreign national without an appropriate visa, employers must take several steps. Generally, this includes demonstrating that you are paying the employee a competitive wage and have exhausted the options for hiring an employee from the United States. Having documented this process for more than one employer in cooperation with an immigration attorney, I was required to carefully document the advertising of the position, the applicants, and the specific reasons candidates from the U.S. did not meet the job requirements.
Space X would have additional requirements related to foreign nationals because of the industry they are in. International Traffic in Arms Regulations applies to the company. These regulations require companies who work with technologies that have defense applications to maintain strict data controls. Security measures include limiting the access of foreign nationals to sensitive technologies. Space X falls under the ITAR because of its rocket and launch technologies:
Intercontinental ballistic missiles and orbital rockets have a lot in common. They rise from the ground, drop empty fuel tanks called boosters, and release their payloads into space. Musk launches satellites in this way. It’s also the way you launch a nuclear warhead across the planet.
To be sure, the science behind these launches are different and they are by no means identical problems for engineers. In other words, it would take a lot of modding to launch a warhead from a Falcon 9. But the rocket stages, engines, and even guidance can inform a ballistic weapons program. So these items are on the ITAR list.
The applicant in question applied for the position of Technology Strategy Associate. While it is not clear what specific data a person in this position would have access to, it implies that he may have access to design and materials information and future product plans. As one compliance website notes:
Understanding ITAR as it relates to your own employees can be a challenge. Imagine you hire someone for your IT department that was born outside the United States. They have an excellent resume and would be an asset to your team. But because they work in the IT department, they could easily access sensitive materials. This is a violation of ITAR regulations, even though the employee is on U.S. soil, working for a U.S. company, and isn’t working directly with classified data.
A company may pursue an export license for a non-U.S. citizen or resident to work with ITAR information. However, the license will be denied if the applicant is from a list of nearly 30 embargoed countries. Nowhere does it appear that an employer is required to pursue such a license.
Space X had provided a spreadsheet with I-9 information under the original subpoena and refused to produce the documents that support an employee’s status. This information would include photocopies of driver’s licenses, social security cards, passports, and work visas. It is unclear exactly why the IER is investigating a pattern or practice of discrimination when Space X is required to discriminate against broad categories of non-citizens for ITAR compliance reasons.
The investigation into this complaint began under the Trump administration, and the request to enforce an administrative subpoena occurred under the Biden administration. It is unclear if this is just another example of how overregulation puts undue burdens on organizations when agencies have conflicting mandates or if CEO Elon Musk’s recent critical statements could have spurred these actions. He has criticized the FAA for delaying a Space X test flight, questioned the response to the GameStop stock drama, and asserted that the complete transition to electric vehicles by 2035 is not feasible.
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