The Immigration Practitioner's Guide to U.S. Export Control Regulations: B. International Traffic in Arms Regulations (ITAR) - Restrictions on Dual and Third Country Nationals
The restrictions on access to USML items by Dual and Third Country National employees of a foreign person can cause significant difficulties because the current accepted definitions of Dual and Third Country Nationals do not reflect the definition of âUS persons.â The Department of State defines Dual and Third Country Nationality as follows:
Third Country National: An individual holding nationality from a country or countries other than the country of the foreign signatory to the agreement; and
Dual National: Holds nationality from the country of a foreign signatory and one or more additional foreign countries.[84]
Although ânationalityâ is not defined under ITAR, it is accepted that the U.S. Government will take country of origin[85] and continued ties or allegiance to a country into account when determining Dual or Third Country Nationality.[86]
This means that a person who was born in the UK but is a U.S. permanent resident working in the U.S. for a U.S. company will be considered a U.S. person only (under the definition of âUS personâ). If, however, the same person emigrated to Canada, obtained Canadian citizenship and commenced employment with a Canadian company, they would be treated as a Canadian-UK Dual National for the purposes of any U.S. export authorization to which their employer was a party. If that person did not obtain Canadian citizenship but instead became a temporary or permanent Canadian resident, they would be treated as a UK Third Country National for the purposes of any U.S. export authorization to which their employer was a party.[28]
It is also possible for a person who was born in one country to become a Dual National for the purposes of ITAR without necessarily leaving their country of origin, simply by obtaining a foreign passport (thereby âholding nationalityâ from another country). This is frequently the case where the individualâs parent/s were born in a country that grants citizenship to children of its citizens, regardless of where the children were born, for example, a child born in Canada to parents who were born in the UK is able to obtain a UK passport (see British nationality law). Once they have done so, they become an Canadian-UK Dual National for the purposes of ITAR.
Restrictions on access to USML items by Dual and Third Country National employees of foreign persons essentially forces foreign persons to discriminate against their employees who do not meet the nationality criteria under an export authorization. Such discrimination may be illegal in some countries under anti-discrimination law (such as in Canada[87] and Australia[37]).
In addition, the prohibition on access by Dual and Third Country Nationals from countries proscribed under ITAR 126.1 can cause problems for countries with large immigrant populations from those countries (such as Canada and Australia, which both have large Overseas Chinese and Overseas Vietnamese immigrant populations: see immigration to Canada and immigration to Australia).[37]
The U.S. Government actively enforces restrictions on access to USML items by Dual and Third Country Nationals:
General Dynamics Land Systems was fined USD$20M in 2004 for breaches of the AECA by its predecessor, GM Defense, that included access to USML items by unauthorized Dual Nationals. The unauthorized access had included direct access to USML items and access to international computer systems on which USML items were stored by Dual Nationals from countries including Syria and the PRC.[88]

















