A foreign person under ITAR and the EAR is anyone who is not a U.S. citizen, a lawful permanent resident, or a “protected individual” under federal immigration law. The label also reaches foreign companies, foreign governments, and international organizations. The classification matters because sharing controlled technical data with a foreign person inside the United States is treated the same as shipping the item overseas: it is an export, and it usually requires a license.
How the Regulations Define It
Both frameworks define the term by exclusion. If you don’t qualify as a U.S. person, you are a foreign person. ITAR states this at 22 CFR § 120.63, and the EAR does the same at 15 CFR § 772.1, where “foreign person” and “foreign national” are used interchangeably.1eCFR. 22 CFR 120.63 – Foreign Person2eCFR. 15 CFR 772.1 – Definitions of Terms as Used in the Export Administration Regulations
Entities count too. Foreign corporations, partnerships, and trusts not incorporated or organized to do business in the United States are foreign persons. So are foreign governments, their agencies, diplomatic missions, and international organizations.1eCFR. 22 CFR 120.63 – Foreign Person
Location doesn’t change the answer. A researcher working in a U.S. lab on an H-1B, L-1, J-1, or F-1 visa is a foreign person no matter how many years they have lived here. What controls is legal immigration status, not geography or length of stay.
Who Counts as a U.S. Person Instead
ITAR’s flip-side definition sits at 22 CFR § 120.62. A U.S. person is a U.S. citizen, a lawful permanent resident, a protected individual under 8 U.S.C. § 1324b(a)(3), or an entity incorporated to do business in the United States. Federal, state, and local government bodies also qualify.3eCFR. 22 CFR 120.62 – U.S. Person
The “protected individual” bucket is broader than most people realize. It covers citizens and nationals, lawful permanent residents, refugees admitted under 8 U.S.C. § 1157, and people granted asylum under 8 U.S.C. § 1158. Individuals granted temporary resident status under certain legalization programs are included as well.4Office of the Law Revision Counsel. 8 USC 1324b – Unfair Immigration-Related Employment Practices
The Naturalization Timing Trap
There is a wrinkle inside the protected-individual definition that catches compliance officers off guard. A lawful permanent resident who becomes eligible to apply for naturalization must actually apply within six months of that eligibility date. If they don’t apply on time, or if they applied but have not been naturalized within two years of the application, they lose “protected individual” status unless they can show they are actively pursuing naturalization. Time the government itself takes to process the application does not count against the two-year window.4Office of the Law Revision Counsel. 8 USC 1324b – Unfair Immigration-Related Employment Practices
The practical result: an employee who was a U.S. person last year may not be one today if their naturalization timeline lapsed. Periodic reverification is worth building into any compliance program, particularly for long-tenured green card holders.
Why the Classification Matters: Deemed Exports
The reason people care about the definition at all is the deemed export rule. Under both ITAR and the EAR, releasing controlled technical data or source code to a foreign person inside the United States is an export, even though nothing physically leaves the country. A conversation at a whiteboard, a shared screen, or a walk through a production floor can all qualify.5eCFR. 15 CFR 734.13 – Export6eCFR. 22 CFR 120.50 – Export
Which agency handles the license depends on what is being shared. Defense articles and technical data on the U.S. Munitions List fall under ITAR, and the license comes from the State Department’s Directorate of Defense Trade Controls. Commercial and dual-use items on the Commerce Control List fall under the EAR, administered by the Bureau of Industry and Security at the Commerce Department. Sharing controlled information before the correct authorization is in hand is a violation regardless of intent.
Dual Nationals Are Handled Differently by Each Regime
If a foreign person holds citizenship or permanent residency in more than one country, ITAR and the EAR do not treat that situation the same way, and the distinction changes what you have to file.
Under the EAR, a deemed export is evaluated as an export to the foreign person’s most recent country of citizenship or permanent residency. A researcher who holds French and Brazilian citizenship, most recently acquiring French, would be assessed against French licensing requirements.7eCFR. 15 CFR 734.13 – Export
ITAR is more conservative. A release to a foreign person is treated as an export to every country in which that person has held or currently holds citizenship or permanent residency.6eCFR. 22 CFR 120.50 – Export If any of those countries appears on the proscribed list at 22 CFR § 126.1, the employer may have to give DDTC additional information showing the person lacks substantial ties to that country before a license will issue.8Directorate of Defense Trade Controls. FAQ Detail ITAR compliance for dual nationals therefore requires a full citizenship history, not just a current passport.
Boundary: Fundamental Research
Not every technical exchange with a foreign national at a U.S. institution is a deemed export. Both frameworks exclude “fundamental research” — basic and applied research in science, engineering, or mathematics that is ordinarily published and shared broadly. Technology or software arising from qualifying fundamental research and intended for publication is not subject to the EAR.9eCFR. 15 CFR 734.8 – Technology or Software That Arises During, or Results From, Fundamental Research Under ITAR, the exclusion applies when the research is conducted at accredited U.S. institutions of higher learning and the results are ordinarily published and shared broadly.10eCFR. 22 CFR 120.34 – Public Domain
The exclusion collapses the moment researchers accept restrictions on publication. Sponsor confidentiality requirements, or government access and dissemination controls on a specific project, pull the work back inside the export rules. Limited prepublication reviews, like a patent check causing a short delay or a sponsor confirming its own proprietary information hasn’t been included, do not by themselves destroy the exclusion.9eCFR. 15 CFR 734.8 – Technology or Software That Arises During, or Results From, Fundamental Research10eCFR. 22 CFR 120.34 – Public Domain A single contract clause restricting what can be published can quietly turn a university lab’s foreign national participation into an unlicensed deemed export.
How to Verify a Person’s Status
Correct classification requires documentation and screening. The I-94 Arrival/Departure Record verifies a non-citizen’s terms of admission and authorized stay; it is now primarily an electronic record retrievable through CBP’s website or the CBP One app.11U.S. Customs and Border Protection. Arrival/Departure Forms: I-94 and I-94W For someone claiming U.S. person status through permanent residency, the Permanent Resident Card (Form I-551) is the primary proof.12U.S. Citizenship and Immigration Services. Handbook for Employers M-274 Passports confirm citizenship and country of birth, both of which matter for licensing, especially under ITAR’s all-countries rule.
Visa category matters. H-1B, L-1, J-1, F-1, and similar non-immigrant visas mean the holder is a foreign person for export control purposes.
Before granting access to controlled technology, the individual should be screened against the Consolidated Screening List, which pulls restricted-party data from Commerce, State, and Treasury. A hit on the Entity List can trigger additional EAR licensing requirements; a hit on the AECA Debarred List means the person is barred from defense trade altogether.13International Trade Administration. Consolidated Screening List Any match calls for an immediate stop on access to technical meetings, lab space, and shared drives until the match is either cleared as a false positive or the appropriate authorization is obtained.
Keeping Verification Separate from I-9
Export compliance does not authorize employers to demand proof of citizenship from every applicant. The Justice Department has issued guidance on how to do this without running afoul of the Immigration and Nationality Act’s anti-discrimination provisions.14U.S. Department of Justice, Civil Rights Division. How to Avoid Immigration-Related Discrimination When Complying with U.S. Export Control Laws
Keep export compliance verification completely separate from the Form I-9 process. The I-9 confirms someone’s right to work in the United States; it is not a tool for export status. Don’t annotate I-9 forms with export notes, and don’t file export documents alongside them. Request documentation for export control purposes only from workers whose specific position requires access to controlled items, and when asking, tell the worker plainly that the request relates to export licensing rather than to their general work authorization.
Don’t advertise a job as limited to U.S. citizens when what you actually need is a U.S. person. The U.S. person category includes permanent residents, refugees, and asylees; misstating the requirement in a posting can itself be a federal anti-discrimination violation.14U.S. Department of Justice, Civil Rights Division. How to Avoid Immigration-Related Discrimination When Complying with U.S. Export Control Laws