Most of the internet chatter about security clearances focuses on the impact of the adjudication process on individual security clearance-holders and applicants. That is entirely understandable since the other half of the equation – the federal agency or cleared contractor sponsoring the individual’s security clearance – doesn’t experience an unfavorable adjudication in the same, highly personal way.

But the truth of the matter is that employers, especially private government contractors who must make a profit to survive, do also suffer when they lose employees because of denied or revoked security clearances. Employee recruitment can be an expensive and time-consuming task that diverts the employer’s focus from productivity and profit. Training new employees is similarly labor-intensive. And even with a large recruiting budget, finding qualified, cleared (or clearable candidates) isn’t always easy – although resources like Clearancejobs.com certainly help.

The Higher the Skill Level, the Higher the Pain

The pain is particularly acute for employers when the denied or revoked employee is a highly-skilled individual with difficult-to-replace expertise. This happens with frequency in the STEM fields, which often attract foreign-born applicants who may encounter security clearance problems due to lingering financial, familial or social ties in their birth country.

Fortunately, there is a little-known tool available to employers facing the potential loss of a key employee. That tool is called a “Waiver” and it serves as a defense in security clearance denial and revocation cases where the employer has a legitimate argument that the individual is indispensable to national security and should thus be afforded special considerations notwithstanding otherwise disqualifying information in his or her background.

How Common Are Waivers?

To be clear, waivers are rarely granted. Obtaining one requires clearing a high bar of proof. But federal government policy does offer a waiver as an option in unusual cases where not granting the clearance would actually cause more harm to national security than any risk posed by granting it. An example could be a scientist working on a cutting-edge military weapon whose expertise in emerging technology is unparalleled. Or, a computer hacker or code-breaker whose skills have allowed the U.S. government a secret technological advantage over an adversary.

Because of the technicalities involved, a waiver should only be requested with the assistance of qualified, experienced legal counsel. And, if a waiver is sought, the employer must be prepared to offer its unqualified support of the candidate, along with documentary or testimonial evidence demonstrating specifically why this particular employee’s skills are so indispensable to national security (not just to the employer’s bottom line) that they warrant a departure from usual adjudicative standards.

If, however, the employer can bring forth a compelling demonstration of need, a Waiver can be a ‘Hail Mary’ for salvaging an indispensable, but otherwise unclearable employee.

 

 

 

This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied.  Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation. 

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Attorney Sean M. Bigley represents clients worldwide in security clearance denials, revocations, and the security clearance application process. He is a former investigator for the Defense Counterintelligence and Security Agency (then-U.S. Office of Personnel Management). For more information, please visit www.bigleylaw.com. Readers will also find a low-cost, self-help option for obtaining copies of their security clearance background investigations and DISS/Scattered Castles records at www.bigleylaw.com/security-clearance-investigation-records.