Employment Authorization for Conditional Permanent Residents whose status has been terminated.
Even after their status has been terminated by USCIS, conditional lawful permanent residents who are in proceedings before an Immigration Judge remain eligible to work in the U.S. This is due to the fact that under U.S. immigration law, conditional lawful permanent residents retain their permanent residency up until the entry of a final administrative order (by an Immigration Judge) removing them from the United States (or if the resident has appealed the Immigration Judge’s decision, the entry of a final decision by the Board of Immigration Appeals. See, e.g., Matter of Lok, 18 I&N Dec. 101, 105 (BIA 1981).
For example, where an immigrant is granted status as a conditional lawful permanent resident through marriage to a U.S. citizen (or permanent resident), but fails to file a joint I-751 Petition to Remove Conditions on residence within the applicable 90-day window, USCIS is instructed to terminate the status of that conditional resident. This is generally done by written notification (ie. a letter) and takes effect immediately. Once conditional status is terminated, USCIS will generally issue a Notice to Appear (Form I-862) which is filed with the U.S. Immigration Court to begin removal proceedings. Under these circumstances, U.S. Immigration law provides that the conditional resident retains temporary status as a lawful permanent resident, can remain in the U.S., work in the U.S., and challenge the decision of USCIS (or late file the joint I-751, or I-751 waiver petition, if applicable), all the way up through the date of entry of a final administrative order of removal by an Immigration Judge (or the BIA, if the Judge’s decision is appealed).
This principle was explained by the Board of Immigration Appeals in Matter of Stowers, Int. Dec. 22 I&N Dec. 3383 (1999):
The Service has recognized the proposition that although an alien’s conditional resident status has been terminated, such alien retains temporary status during the pendency of review in proceedings to remove the alien. See Memorandum of Kathy A. Redman, Acting Ass’t Comm’r for Adjudications, Status of Conditional Residents in Proceedings, (Oct. 9, 1997), reprinted in 74 Interpreter Releases, No. 43, Nov. 7, 1997, app. III at 1731 (stating that “the terminated conditional lawful permanent resident should be issued a temporary I-551, during the pendency of such review”); Status of a Conditional Permanent Resident After Denial of I-751 During Pendency of Review by EOIR, 96 Op. Gen. Counsel 12 (Aug. 6, 1996).
Although Matter of Stowers only appears to apply to alien immigrants who were placed into removal proceedings after their conditional residence was terminated by USCIS, a very good argument can be made for the proposition that being in proceedings is not a pre-condition, since, as stated above in Matter of Lok, permanent residents retain their status up until the time of entry of a final administrative order removing them from the U.S. It therefore seems logical and consistent that the law should provide temporary conditional resident status to such individual, from the date of termination of status all the way up to the date of the final administrative order of removal; not just for alien immigrants whose status was terminated and were placed in removal proceedings.
What is important to note here is that since the conditional lawful permanent resident retains temporary status (even after termination) up until the entry of a final administrative order of removal, he or she does NOT need to apply for employment authorization, but rather retains the privilege of being automatically authorized to work in the U.S. by virtue of retaining the status of a conditional lawful permanent resident. All that is needed is temporary evidence of conditional lawful permanent resident status, which USCIS is required, by law, to issue to all Residents who can demonstrate this lawful status.
If your conditional permanent residence has been terminated by USCIS and you need assistance in applying for employment authorization, contact U.S. Immigration Lawyer Sean D. Hummel (954) 385-3111 to schedule a consultation.
Special Note. The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented in this blog to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced U.S. Immigration Lawyer.
