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Dual Nationals and Third Country Nationals

The State Department sets forth their policy regarding export licensing/agreements and dual-citizens/third-country nationals in two sections of the ITAR. §124.16 allows dual/third country nationals of NATO/EU nations, Australia, Japan, New Zealand, and Switzerland to have access to defense articles/technical data provided for under a TAA/MLA, provided they are an employee of the foreign signatory or approved sublicensees listed in the agreement. These dual/third country nationals must be a citizen exclusively of the nations listed above and the transfer must take place in one of those countries. Additionally, permanent retransfer of hardware is not permitted under this authorization.


§126.18 allows the transfer of unclassified technical data to third country nationals and dual nationals who are bona fide employees of the foreign consignee or the end-user. The transfer must take place either in the country of end use or in the country where the consignee operates and must be within the scope of a license/license exemption.  This authorization also has additional requirements that must be fulfilled by the foreign party before use to allow access to controlled defense articles/technical data to their dual/third country national employees (i.e. implementation of a written procedures to prevent dissemination of technical data).


As it relates to dual/third country national employees, the Commerce Department only focuses on the last citizenship (or permanent residency) obtained by the employee of a foreign party when considering what licensing authority is required for a deemed export, unlike the State Department who also considers country of birth.  If the exporter knows of dual/third country nationals having access to technology or controlled items when obtaining BIS licensing, this should be provided for on the export licensing request based on their most recent country of citizenship/permanent residence.  If the item in question is solely technology/source code, the exporter has the choice to use the ITAR rules listed above or the BIS rule.


For further information please review ITAR §124.16 and §126.18, the DDTC Agreement Guidelines ( and the Deemed Export Guidelines on the BIS website. (



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