Employment Authorization for Conditional Permanent Residents Whose Status Has Been Rerminated.

Even after USCIS terminates their status, conditional lawful permanent residents who are in removal proceedings before an Immigration Judge remain eligible to work in the United States. Under U.S. immigration law, conditional lawful permanent residents retain their permanent residency until a final administrative order of removal is entered — either by an Immigration Judge or, if appealed, by the Board of Immigration Appeals (BIA). See, e.g., Matter of Lok, 18 I&N Dec. 101, 105 (BIA 1981); 8 C.F.R. § 216.4(a)(6).

How This Arises in Practice

A common scenario: an immigrant obtains conditional lawful permanent residence 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 preceding the second anniversary of their conditional residence. USCIS is then required to terminate that status — typically by written notice effective immediately.

Following termination, USCIS generally issues a Notice to Appear (Form I-862), which is filed with the U.S. Immigration Court to initiate removal proceedings. Once in proceedings, the conditional resident retains temporary status as a lawful permanent resident, may remain in the United States, may work lawfully, and may challenge the termination — including by late-filing the joint I-751 or an I-751 waiver petition, if applicable — up through the date a final administrative order of removal is entered by the Immigration Judge (or the BIA, if appealed). Importantly, once USCIS refers the matter to the Immigration Court, the Immigration Judge has jurisdiction to adjudicate the I-751 petition directly in those proceedings.

The Legal Basis: Matter of Stowers

The BIA articulated this principle in Matter of Stowers, 22 I&N Dec. 605 (BIA 1998), Int. Dec. 3383:

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).

Does This Principle Apply Before Proceedings Begin?

Matter of Stowers addressed individuals placed in removal proceedings after their conditional status was terminated by USCIS. However, a strong argument exists that being in proceedings is not a prerequisite. As Matter of Lok establishes, lawful permanent residents retain their status until entry of a final administrative order of removal — not merely until the initiation of proceedings. It follows logically and consistently that the law should afford temporary conditional resident status from the date of USCIS termination through the date of a final order of removal, regardless of whether the individual has been formally placed in proceedings at the time.

No Separate Employment Authorization Application Required

The most important practical point: because the conditional resident retains temporary lawful permanent resident status even after termination, he or she is not required to file a separate application for employment authorization. Work authorization is an incident of status — it flows automatically from the retained conditional resident status itself.

What the resident does need is documentary evidence of that temporary status. USCIS is required by law to issue such evidence to individuals who can demonstrate their lawful status. This typically takes the form of a temporary I-551 (a stamp in the passport or a separate I-551 card) or an ADIT stamp, either of which an employer may accept as evidence of employment authorization.

If your conditional permanent residence has been terminated by USCIS and you need assistance challenging that termination, navigating removal proceedings, or late-filing an I-751 petition, contact U.S. Immigration Lawyer Sean D. Hummel at (954) 385-3111 to schedule a consultation.

Special Note: The information in this blog is general in nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented here to address your individual legal concerns. If you have a legal question about your specific facts and circumstances, you should consult an experienced U.S. Immigration Lawyer.