US Person Status: Foreign National Access

Last verified: August 16, 2026. This page explains the general legal framework for determining “U.S. person” status under U.S. export control law and what that status means for foreign national access to controlled research. It is general guidance for research administrators and PIs, not a legal determination for any specific individual or project. Status determinations belong to your institution’s export control officer or Empowered Official, who must review each person’s actual immigration and citizenship documentation.

What “U.S. person” status actually determines

Before a lab can figure out whether a “deemed export” problem exists, it has to answer a narrower, prior question: is this specific person, right now, a “U.S. person” under export control law? Everything downstream — whether releasing controlled technical data to them counts as an export, whether a Technology Control Plan (TCP) needs to restrict their access, whether a license is required before they can touch a piece of controlled equipment — depends on that determination. It is a status question, not a trust or competence question, and it is made under specific federal regulatory definitions, not under an institution’s own judgment about who “seems” foreign.

Under both the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR), a “U.S. person” generally includes:

U.S. citizens (including dual citizens — U.S. citizenship controls regardless of any other citizenship held).
U.S. nationals.
Lawful permanent residents (LPRs) — “green card” holders — as defined at 8 U.S.C. 1101(a)(20).
Certain “protected individuals” as defined at 8 U.S.C. 1324b(a)(3) — a narrower category than “any immigrant,” covered in detail below.
U.S.-incorporated entities — corporations, business associations, partnerships, and similar organizations incorporated or organized to do business in the United States, plus federal, state, and local government entities.

Everyone else — every individual who does not fit one of those categories — is a foreign person for export control purposes, regardless of how the institution otherwise perceives them.

The mistake research groups make most often

The single most common error in university labs is assuming that time, trust, or role settles the question. None of the following make someone a U.S. person:

Years in the lab. A researcher who has worked in the same U.S. lab for a decade on an H-1B or J-1 visa is still a foreign person on day 3,650 unless their underlying immigration status has actually changed (e.g., to LPR).
Visa type or employment authorization. An H-1B holder, an F-1 student (including one on OPT or STEM OPT work authorization), a J-1 exchange visitor, and a TN or O-1 holder are all foreign persons for export control purposes. Having a Social Security number, being on institutional payroll, holding a faculty or staff title, or having full work authorization under a visa category does not confer U.S. person status — work authorization and export-control status are governed by entirely different bodies of law and answer different questions.
Applying for a green card. Someone with a pending I-485 adjustment-of-status application is not yet an LPR. The status changes on approval, not on filing.
Seniority or security clearance level at a non-university employer. Export control status turns on citizenship/immigration status, not job title, tenure, or the level of institutional trust extended to someone.

Conversely, a graduate student who obtains U.S. citizenship through naturalization, or whose green card is approved, becomes a U.S. person at that point — the determination is a snapshot of current legal status, re-checked when status changes, not a permanent label assigned at hire.

ITAR vs. EAR: the definitions are not identical

Research offices often treat “U.S. person” as one uniform export-control concept. It isn’t. ITAR and EAR each define it separately, in separate regulations administered by separate agencies, and the EAR’s definition is explicitly scoped to specific provisions rather than standing as one universal EAR-wide definition the way ITAR’s does. Getting this distinction right matters most when a project or piece of equipment could fall under either regime, or when institutional policy needs to cite the correct authority.

ITAR — 22 CFR 120.62

The State Department’s ITAR defines “U.S. person” at 22 CFR 120.62 as a person who is a lawful permanent resident (as defined by 8 U.S.C. 1101(a)(20)) or a protected individual (as defined by 8 U.S.C. 1324b(a)(3)); any corporation, business association, partnership, society, trust, or other entity or organization incorporated to do business in the United States; and any federal, state, or local governmental entity. The regulation states directly that a U.S. person “does not include any foreign person” as defined in the companion provision at 22 CFR 120.63. This is a single, consistently applied definition used throughout ITAR.

EAR — 15 CFR 772.1

The Commerce Department’s EAR defines “U.S. person” at 15 CFR 772.1, but with an important structural difference: the definition is explicitly stated to apply “for purposes of” a specific enumerated list of EAR sections (including the end-use and end-user control provisions at 15 CFR 744.6, 744.10–744.14, and the antiboycott provision at 745.2(a)(1)) — not as one blanket EAR-wide definition. For those listed purposes, “U.S. person” includes: (1) any individual who is a citizen of the United States, a permanent resident alien, or a protected individual as defined by 8 U.S.C. 1324b(a)(3); (2) any juridical person organized under the laws of the United States or any U.S. jurisdiction, including foreign branches; and (3) any person in the United States — a notably broader physical-presence clause with no ITAR equivalent. The regulation text itself flags that other EAR sections and parts (740.9, 740.14, 740.21(f)(2), and Parts 746 and 760) use their own context-specific “U.S. person” definitions rather than the 772.1(a) one.

The EAR’s deemed-export provisions themselves (15 CFR 734.13 and 734.15) are framed around release of controlled technology or source code to a foreign person within the United States, and BIS guidance and university export control offices generally apply the same core test used under ITAR — citizen, national, LPR, or protected individual — to determine who counts as a foreign person for deemed-export analysis, rather than the broader “any person in the United States” language that governs the narrower list of sections above. In practice, this means the operative deemed-export test a lab needs to apply to a specific person is closely aligned across both regimes even though the underlying statutory text is not word-for-word identical, and a compliance office should not assume the two definitions are simply interchangeable shorthand for the same rule.

“Protected individual” — the category most often missed

Both ITAR and EAR reach into the same immigration-law provision, 8 U.S.C. 1324b(a)(3), for the “protected individual” category, and it is narrower than it sounds. A protected individual is someone who:

is a citizen or national of the United States, or
is an alien lawfully admitted for permanent residence, granted temporary residence under specific legalization provisions (8 U.S.C. 1160(a) or 1255a(a)(1)), admitted as a refugee under 8 U.S.C. 1157, or granted asylum under 8 U.S.C. 1158;

— but excludes an LPR who fails to apply for naturalization within six months of first becoming eligible, and an LPR who applies for naturalization on time but is not naturalized within two years of applying (absent an active, good-faith naturalization pursuit). This means asylees and refugees are U.S. persons for export control purposes from the point their status is granted — a fact labs frequently miss, since asylum/refugee status is sometimes wrongly assumed to carry the same restrictions as a temporary visa. It also means an LPR who has been eligible to naturalize for years without applying can, in a narrow and specific set of circumstances, fall outside “protected individual” status — though such a person typically still qualifies as a U.S. person independently, as an LPR under 8 U.S.C. 1101(a)(20), so this edge case rarely changes the practical outcome for lab-access purposes.

Status-determination table: immigration status → U.S. person? → lab access implication

Immigration / citizenship status	U.S. person under export control law?	What it means for controlled-technology lab access
U.S. citizen (including dual citizen)	Yes	No deemed-export analysis required based on citizenship; access governed by ordinary need-to-know and any project-specific restrictions only.
U.S. national (non-citizen national, e.g. certain American Samoa-born individuals)	Yes	Same as U.S. citizen for export-control purposes.
Lawful permanent resident (LPR / green card holder)	Yes	U.S. person under 8 U.S.C. 1101(a)(20); no deemed-export license required based on this status.
Asylee (asylum granted) or refugee (admitted under 8 U.S.C. 1157)	Yes, as a protected individual under 8 U.S.C. 1324b(a)(3)	Treated as a U.S. person once status is granted — must be documented, since pending asylum applications do not yet confer this status.
Pending asylum applicant / pending I-485 adjustment of status	No, until the underlying status is actually granted or approved	Treated as a foreign person until approval; re-evaluate status the moment it changes.
H-1B specialty-occupation visa holder	No	Foreign person regardless of tenure, role, or seniority; deemed-export screening and, where applicable, a TCP apply before controlled access.
F-1 student (including OPT / STEM OPT work authorization)	No	Foreign person; work authorization does not confer export-control status. Screen before granting access to controlled equipment, source code, or technical data.
J-1 exchange visitor (visiting scholar, researcher, postdoc)	No	Foreign person; a very common deemed-export trigger point at onboarding for visiting-scholar arrangements.
TN, O-1, E-3, or other temporary work visa holder	No	Foreign person; same screening obligation as any other non-immigrant visa category.
Undocumented individual present in the United States	No under ITAR; may fall within the broader “any person in the United States” EAR 772.1(a)(3) clause for the specific listed EAR provisions it governs, but not for the general deemed-export foreign-person test	Treat as a foreign person for deemed-export purposes; consult export control office — this is a genuinely fact-specific edge case, not a default-safe category.
Foreign national physically located outside the United States	No	Not a U.S.-person deemed-export scenario per se, but a direct (non-deemed) export analysis applies to any controlled technology, equipment, or data sent to them.
U.S.-incorporated company, university, or government entity (as an organization)	Yes	The entity itself is a U.S. person; this does not extend U.S.-person status to its individual foreign-national employees or students.

This table is a starting reference, not a substitute for a documented determination. Immigration status changes (a visa holder becomes an LPR, an asylum application is approved or denied, a naturalization completes) require the determination to be re-run, not assumed to still hold from onboarding.

Why the determination matters in practice

Deemed exports

Releasing export-controlled technology, technical data, or source code to a foreign person inside the United States is legally treated as an export to that person’s most recent country of citizenship or permanent residency — a deemed export — even though nothing physically crosses a border. This is why the status determination has to happen before a foreign-national student, postdoc, or visiting scholar is given hands-on access to controlled equipment, source code, or technical data, not after. A determination that someone is a U.S. person removes the deemed-export analysis for that individual entirely; a determination that they are a foreign person triggers it.

Lab access controls and Technology Control Plans

Where deemed-export exposure exists, institutions typically manage it through a Technology Control Plan (TCP) — a documented set of physical, IT, and procedural restrictions scoped to the specific controlled equipment, software, or technical data, and to the specific individuals who have and have not cleared status screening. A TCP is meaningless without an accurate, current U.S.-person determination behind it; screening has to happen at onboarding, before access is granted, and again whenever a covered individual’s status or role changes.

How the fundamental research exclusion interacts

The fundamental research exclusion protects information intended for open publication — it does not itself resolve who is or isn’t a U.S. person, and it does not automatically authorize a foreign national’s hands-on access to controlled equipment or technical data. A project can be squarely within the fundamental research exclusion for its eventual published results while still requiring a U.S.-person determination, and potentially a TCP, for any foreign national who needs intermediate access to controlled instruments, source code, or technical data to do the work. The two questions — is this research fundamental, and is this specific person a U.S. person — are evaluated separately, and a “yes” to the first does not answer the second.

The discrimination trap: screening without illegal profiling

Export-control screening exists to answer a narrow legal question — citizenship and immigration status, evaluated against specific federal categories — and it has to be applied that way in practice, not as a proxy for national-origin or citizenship-based hiring or access decisions more broadly. This is a genuine, frequently under-covered compliance tension, and it runs directly into the same statute that supplies the “protected individual” definition above:

8 U.S.C. 1324b — the same section that defines “protected individual” for export control purposes — separately prohibits unfair immigration-related employment practices, including discrimination based on national origin and, for protected individuals specifically, discrimination based on citizenship status in hiring, recruitment, referral, or discharge decisions.
Export-control screening must be applied uniformly and only to determine actual license/access requirements — not used to exclude candidates from hiring, admission, or general lab participation based on national origin or citizenship before an actual controlled-technology access question exists. A blanket policy of not hiring, not admitting, or not considering candidates of a particular nationality because it’s operationally simpler than doing individualized screening is not a permitted export-control practice — it is the kind of citizenship/national-origin discrimination 1324b and Title VII of the Civil Rights Act both separately prohibit.
The correct scope of a determination is narrow and documented: is this specific person, for this specific project or piece of controlled technology, a U.S. person under 22 CFR 120.62 / 15 CFR 772.1 — not a general judgment about the person’s background, national origin, or perceived risk level.

Institutions generally manage this tension by routing status determinations through the export control office using a standard, documented process applied consistently to everyone whose role touches controlled technology or data — regardless of visible national origin, accent, or name — rather than leaving informal screening judgment to individual PIs or hiring managers. Legal counsel and the institution’s export control officer, not an individual lab, should set the actual screening and documentation procedure, precisely because the line between lawful export-control screening and unlawful discrimination is a real one that a well-intentioned but informal process can cross without anyone intending it to.

Who makes the determination

The U.S.-person determination for a specific individual, project, or piece of controlled technology belongs to the institution’s export control officer — often the same person serving as the ITAR-required Empowered Official — not to an individual PI, hiring manager, or lab administrator working from general knowledge of this page. That office reviews the actual documentation (passport, green card, asylum/refugee grant, naturalization certificate, or equivalent), applies the correct regulatory definition for the regime actually implicated (ITAR, EAR, or both), and documents the determination and its basis. PIs and lab managers should flag every new hire, student, visiting scholar, or collaborator who will touch controlled equipment, software, or technical data to that office before access begins — not make the determination themselves.

Frequently asked questions

What is a foreign citizen for export control purposes?

A foreign citizen (more precisely, a “foreign person” in export-control terminology) is anyone who is not a U.S. citizen, U.S. national, lawful permanent resident, or protected individual as defined at 8 U.S.C. 1324b(a)(3), and who is not a U.S.-incorporated entity or government body. This includes individuals on nonimmigrant visas such as H-1B, F-1, J-1, TN, and O-1, regardless of how long they have lived or worked in the United States, unless their underlying immigration status has actually changed to one of the U.S.-person categories.

What is the U.S. person definition under export control law?

There are two separate regulatory definitions. Under ITAR (22 CFR 120.62), a U.S. person is a lawful permanent resident, a protected individual under 8 U.S.C. 1324b(a)(3), a U.S.-incorporated entity, or a federal/state/local government body. Under EAR (15 CFR 772.1), for the specific sections that definition governs, a U.S. person is a citizen, permanent resident alien, or protected individual; an entity organized under U.S. law; or any person physically in the United States. The general EAR deemed-export test in practice tracks the citizen/LPR/protected-individual core shared with ITAR rather than the broader “any person in the United States” clause.

Is a green card holder a U.S. person for export control purposes?

Yes. A lawful permanent resident is explicitly included in both the ITAR (22 CFR 120.62) and EAR (15 CFR 772.1) definitions of U.S. person, citing the same underlying immigration-law definition at 8 U.S.C. 1101(a)(20).

Is a visa holder ever a U.S. person?

Not by virtue of the visa itself. An H-1B, F-1, J-1, TN, O-1, or similar nonimmigrant visa holder is a foreign person for export control purposes regardless of the length of their employment, their work authorization, or their role, unless their underlying status separately changes to lawful permanent resident, asylee/refugee (protected individual), or U.S. citizen/national.

Does export-control screening violate anti-discrimination law?

Properly scoped screening — applied uniformly, limited to the actual regulatory citizenship/immigration-status question, and documented through the export control office — is a legal compliance requirement, not discrimination. It becomes a legal problem when citizenship or national origin is used more broadly than the actual export-control question requires — for example, to exclude candidates from hiring or admission generally. 8 U.S.C. 1324b, the same statute supplying the “protected individual” definition used in the U.S.-person test, separately prohibits national-origin and citizenship-status discrimination in employment.

Who decides whether someone is a U.S. person?

The institution’s export control officer or Empowered Official makes and documents this determination, based on the individual’s actual immigration/citizenship documentation and the specific regulatory regime (ITAR and/or EAR) implicated by the project or technology involved — not the PI, lab manager, or the individual’s own self-report alone.

Related CASRAI guidance

This page is general compliance guidance, not legal advice, and does not substitute for an institution-specific U.S.-person determination made by your export control officer or Empowered Official.

“US Person” Status and Foreign National Access in Export-Controlled Research

Ask about “US Person” Status and Foreign National Access in Export-Controlled Research